Class 
Book 




%^ ' 



THE 



CONSTITUTIONAL CONVENTION; 



HISTORY, POWERS, AND MODES OF PROCEEDING. 



JOHN ALEXANDER JAMESON, 

w 

E SUPEKIOK COURT OF CHICAGO, AND PROFESSOR OF CONSTITUTIONAL 
ETC., IN THE LAW DEPARTMENT OF THE CHICAGO UNIVERSITY. 



■ V i- ,,1" omnis hominum coetus quoque modo congregatus, sed coetus multitudinis juris 

r'Oooat .« et K'- tatis communione sociatus. — Cicero, de Repub. 

Th"- th^t e- about by disobedience to do no more than reforme the commonwealth shall find 

! ' reby destroy it. — Hobbes, Levta^Aan. 



NEW YORK: 
CHARLES SCRIBNER AND COMPANY. 

CHICAGO: S. C. GRIGGS AND COMPANY. 

1867. 



JK^, 



Entered according to Act of Congress, in the year 1866, by 

John A. Jameson, 

in the Clerk's Office of the District Court of the United States for the Northern District 

of Illinois. 



RIVERSIDE, CAMBRIDGE: 

iTEEEOTTPED AND PRINTED BY 

H. O. HOUGHTON AND COMPANY. 



TABLE OF CONTENTS. 



CHAPTER I. 

OF THE VARIOUS KINDS OF CONVENTIONS. 

Leading principles of the American system of government. The function of 

legislation, how distributed abroad, and how in America. § 1. 
Inif ^ance of the Constitutional Convention. Enacts the fundamental law. 

Conb' utional Conventions and Secession. § 4. 

^' ' s species of Conventions described and distinguished. §§4-16. 

The Spontaneous Convention, or Public Meeting. §§ 4, 5. 
The Legislative Convention, or General Assembly. § 6. 
The Revolutionary Convention. §§ 7-10. 
Examples of, in England. § 8. 
Examples of, in early American history. §§ 9, 10. 
The Constitutional Convention. § 11. 

Where the Constitutional Convention exercises the powers of a 
Revolutionary Convention, or vice versa, how to be classed. § 12. 
History of the origin and development of the Constitutional Con- 
vention in the United States. §§ 13, 14. 
Misconceptions respecting the origin, constitution, and powers of the 

Constitutional Convention. §§ 15, 16. 
Fundamental conceptions to be first developed — sovereignty, or a 
sovereign body, and a Constitution, or law fundamental. §17. 

CHAPTER n. 

OF SOVEREIGNTY. 

Definition of the terms "sovereign " and " sovereignty." § 18. 

Distinction between "sovereign" and "supreme." § 18, note 1. 

Marks or tests of sovereignty, as laid down by Austin. § 19. 

Additional marks. § 20. 

Ground of sovereignty. § 21, note 2. 

The question, where sovereignty resides, considered theoretically. § 21. 

The attributes of sovereignty. § 22. 

Modes in which sovereignty manifests itself. §§ 23, 24. 



IV TABLE OF CONTENTS. 

Direct manifestations through public opinion, and through the irregular exhibi- 
tion of powe7\ §23. 
Indirect manifestations of sovereignty, through governmental agencies, as, the 
electors, the legislative, executive, and judicial departments, and the Constitu- 
tional Convention. § 24. 
Relative rank of these five systems of agencies. § 24. 
The doctrine of constitutional presumptions stated. § 25. 
Corollaries by their aid deduced from the foregoing principles. § 25. 
The locus of sovereignty, as a question of fact : — 
I. In foreign states. § 26. 
II. In the United States of America. §§ 27-53. 

(a). The question considered from the point of view of the elementary 
principles above developed. §§ 27-29. 
The definition of sovereignty considered and applied. § 27. 
The marks or tests of sovereignty, given by Austin, applied. § 28. 
The additional marks or tests before stated, applied. § 29. 
(&). The question considered from the point of view of historical 
facts and principles tending to determine the question of Amer- 
ican nationality. §§ 30-50. 
. What it is to be a nation. § 30. 
What it is not to be a nation. § 31. 
In the light of these definitions, that the United States consti- 
tute a nation, inferred — 

1. From the fact, that, in their development there is ob- 

servable a perfect conformity to the method of Na- 
ture in the genesis of nations. §§ 32-35. 

The method of Nature exemplified. §§ 33, 34. 

Capital steps in the progress of the United States, speci- 
fied. §§ 34, 35. 

2. From the mode of ratification of the Federal Consti- 

tution. §§ 36-38. 
View of the " States Rights School." § 37. 
Observations on the mode of ratification adopted. § 38. 

3. From the expressed opinions of contemporary states- 

men, friends as well as enemies of the Constitution, 
§§39-41. 

4. From the arguments employed to defeat the Federal 

Constitution in the Conventions called to ratify it. 
§§ 43-45. 

5. From judicial decisions and the opinions of statesmen, 

historians, and publicists subsequent to the establish- 
ment of the Constitution. §§46-48. 

Opinion of the Supreme Court of the United States, per 
Wilson, J. § 46. 

Opinions of Washington, Dr. Ramsay, C. C. Pinckney, 
and Charles Pinckney. §47. 

Opinions of Mr. Grimke, Chancellor Kent, John Quincy 
Adams, and Judge Story. § 48. 



TABLE OP CONTENTS. V 

Opinion, expressed by Madison, that the States never 

were sovereign. § 49. 
Decision to the same effect by the Supreme Court of 

the United States. § 50. 
Observations on the foregoing authorities, and conclu- 
sion stated, that sovereignty resides in the American 
people, or nation. § 51. 
The question of allegiance, considered. § 52. 
Quasi-sovereignty and quasi-allegiance. § 53. 
Allegiance due to the people of the United States only. 
§§ 52, 53. 
How sovereignty inheres in the people of the United States. §§ 54-61. 
Two answers to the question, namely : — 

(a). That sovereignty resides in the people, considered simply, that is, as a 

unit, without State or other internal discriminations ; and 
(6). That it resides in the people only as discriminated into, and acting in, 
groups, by States. §§ 54-61. 
The exercise of sovereignty distinguished from the possession of origi- 
nal sovereign powers. § 55. 
The regular distinguished from the possible exercise of sovereignty. 

§56. 
Application of these principles to the United States. § 57. 
Judging by the regular exercise of sovereignty under the Federal 
Constitution, sovereignty resides in the people of the United States 
as discriminated into groups, by States. § 57. 
Judging by the possible exercise of sovereignty, that power resides in 
the people simply, without State or other internal discriminations. 
§57. 
The capacity in which the States, under the existing Federal Constitution, 
exercise sovereignty, — sometimes in that of State Governments, and sometimes 
in that of subordinate peoples, together constituting the American nation. 
§§ 58, 59. 

View of John Austin. § 60. 
View of Dr. Brownson. § 61. 

Meaning of the term " sovereign " when used in this work in reference 
to the States of the Union. § 62. 



CHAPTER HI. 

OF CONSTITUTIONS. 

The term "Constitution " defined. Constitutions discriminated into two kinds — 
Constitutions as objective facts, and Constitutions as instruments of evidence. 
§63. 

Constitutions " as they ought to be," framed for imaginary commonwealths, con- 
trasted with Constitutions as objective facts. § 64. 

I. Nature of Constitutions, as objective facts, considered ; and herein, principally, 



VI TABLE OP CONTENTS. 

of the question, whetlier Constitutions as objective facts are founded on 
compact. §§ 65-67. 
Are Constitutions, as instruments of evidence, founded on compact ? § 68. 
When discrepancies exist between the Constitution of a state as a fact, and its 
Constitution as an instrument of evidence, which has the superior validity ? 
§69. 
II. Specific varieties of Constitutions, as objective facts. § 70. 
Constitutions, as instruments of evidence, discriminated — 

First, with reference to the mode in which they originate, into two classes, viz. : 

1. Cumulative Constitutions. §§ 71, 72. 

2. Enacted Constitutions. §§ 71, 73. 

Secondly, with reference to their general characteristics as sources of evidence, 
into two others, viz. : — 

3. Unwritten Constitutions. §§71, 74. 

4. Written Constitutions. §§ 71, 74. 

Written and unwritten Constitutions distinguished. §§ 74, 75. 
Consequences of this distinction. The two kinds, how construed. 
. §76. 

Advantages of written Constitutions. § 77. 
Disadvantages of written Constitutions. § 78. 
Opinion of De Maistre. § 78, note 1. 
Advantages of unwritten Constitutions. § 79. 
Disadvantages of unwritten Constitutions. § 80. 
Difficulty of striking a balance between them. Requisites for safety 
under each, considered. §§ 81-83. 
In the United States all Constitutions, considered as instruments of evidence 

except two, have been written Constitutions. § 84. 
Distinction between a fundamental law, or Constitution, and an ordinary munici- 
pal law. §§ 85-87. 
Two distinct varieties of Constitutions in the United States, — those of the General 
Government and those of the States. Distinction between the two. §§89-91. 
Rules of construction applicable to each. § 91. 

The Constitution of the United States a part of the Constitution of each State, 
and the Constitutions of all the States parts of the Constitution of the United 
States. § 92. 

Both kinds form governments of limited jurisdiction. § 93. 
Which of the two is supreme ? §§ 93, 94. 

Necessity of keeping the two kinds In their operation distinct. § 95. 
Opinion of Mr. Webster quoted. § 95. 
Internal structure of the American Constitutions. § 96. 
Constitutions commonly consist of three parts : — 

1. The Bill of Rights. Object and contents of a Bill of Rights. §§ 96-99. 
The Federal Constitution has no Bill of Rights, why. § 98. 

2. The Frame of Government, description of. §§ 100, 101. 

3. The Schedule. Object and contents of a Schedule. § 102. 

Precedents showing the extent to which a Schedule has been em- 
ployed. § 103, 



TABLE OF CONTENTS. vii 



CHAPTER IV. 



OF THE REQUISITES TO THE LEGITIMACY OF CONVENTIONS, AND OF 
THEIR HISTORY. 

Requisites to the legitimacy of Constitutional Conventions. §§ 104-259. 
Preliminary observations. 

Meaning of the term " legitimacy," and its derivatives. §§ 105-108. 

Meaning of the term "revolution," and its derivatives. §§ 109-111. 

Importance of defining the term revolution. Doctrine of precedents. § 11 2. 
I. The proper mode of initiating or calling a Convention. 

The question considered from the point of view of theoretical principles. 
§§114-124. 

But two modes possible : — 

1. By the intervention of unofficial persons ; that is, by private citizens, 

giving expression, perhaps, to a general desire. § 114. 
' Observations on this mode. §§ 114, 115. 

2. By some authentic act of the sovereign body, through some branch of the 

existing government. §116. 
Observations on this mode, in general. § 116. 

Particulars involved in the term " mode." First, agencies ; second, man- 
ner of proceeding. § 117. 
Examination of the various governmental agencies, with respect to fitness 
to dischai'ge the function of calling Conventions. §§ 118-121. 
(a). The electors. § 118. 
(b). The judicial department. §119. 
(c). The executive department. § 120. 
((/). The legislative department. § 121. 
In what manner a Convention should be called. §§ 122-123. 
Though a Convention be illegitimate, the Constitution framed by it may 

become legitimate, how. § 124. 
The proper mode of calling a Convention, looking at the question from 

the point of view of precedents. §§ 125-259. 
Conventions thus far held divided into two great classes : — 
(a). Such as were held during the revolutionary period, fi-om 1775 to 
March 1789. §§ 125-169. 
History of the times in which these Conventions were called, and 
the general causes by which their legal character was deter- 
mined. §§ 126-130. 
Advice of the Continental Congress to Massachusetts, New 
Hampshire, Virginia, and South Carolina, in 1775, to form in- 
dependent governments therein. §§ 127, 128. 
General recommendation of the Congress to all the Colonies, of 

May 10, 1 776, to the same effect. § 128. 
Observations on this recommendation. § 129. 
Conditions and elements of the problem to be solved by our 
fathers. § 130. 



Vm TABLE OP CONTENTS. 

New Hampshire Convention of 1775. History and character of. 

§ 131. 
New Hampshire Conventions of 1778 and 1781. History and 

character of. § 132. 
South Carolina Convention of 1776. History and character of. 

§ 133. 
Observations on this Convention. § 134. 
South Carolina Convention of 1778. History of. § 135. 
Character of the Constitution framed by it. § 136. 
Character of the Convention of 1778. § 137, 
Virginia Convention of 1776. History and character of § 138. 
New Jersey Convention of 1776. History and character of 

§§ 139, 140. 
Delaware Convention of 1776. History and character of. §§ 141, 

142. 
Pennsylvania Convention of 1776. History and character of. 

§§ 143, 144. 
Maryland Convention of 1 776. History and character of § 145. 
North Carolina Convention of 1776. History and character of 

§ 146. 
Georgia Convention of 1776. History and character of. § 147. 
Georgia Convention of 1788, and the two Georgia Conventions 

of 1789. History and character of §§ 148, 149. 
New York Convention of 1776. History and character of 

§§ 150-152. 
Vermont Convention of 1 7 7 7. History and character of §§153, 

154. 
Vermont Conventions of 1785 and 1786. History and character 

of § 155. 
Massachusetts Convention of 1778. History and character of 

§156. 
Massachusetts Convention of 1779. History and character of. 

§§ 157, 158. 
First Federal Convention — the Continental Congress. Char- 
acter of §§ 159-162. 
Mode of ratification of the Articles of Confederation as bearing 

on the question of their legitimacy as a Constitution. § 161. 
Defects of the government of the Confederation. § 162. 
Virginia Resolutions of 1786, and the Annapolis Convention. 

§ 163. 
Recommendations of the Annapolis Convention. § 163. 
Observations on the Virginia Resolutions and on the Annapolis 

recommendations. § 164. 
Action of Congress on these recommendations. Call of the sec- 
ond Federal Convention. § 165. 
Character of this Convention. § 166. 

State Conventions called to ratify the Federal Constitution. 
History and character of § 167. 



TABLE OF CONTENTS. IX 

Other ratifying Conventions. § 1 6 7. 

General observations on the Conventions of the revolutionary 

period. §§ 168, 169. 
(b). Conventions called since the Federal Constitution went into 

operaiton, in March, 1789. 
Several varieties : — 

1. Conventions to frame Constitutions for new States to be 

formed within the jurisdiction of States, members of 

the Union. §§170-193. 
Provision of the Federal Constitution governing these 

cases ; names of the States so formed ; and requisites 

for the legitimacy of the Conventions concerned in 

forming them. § 171. 
Case of Vermont. §172. 
Kentucky Convention of 1792. History and character 

of. §§173, 174. 
Tennessee Convention of 1796. History and character 

of. §§ 175-182. 
Discussion in Congress on the admission of Tennessee into 

the Union. §§ 179, 180. 
Observations on the Tennessee case. §§ 181, 182. 
Maine Convention of 1819. History and character of. 

§§ 183-185. 
Conventions of Virginia, and of West Virginia, of 1861. 

History and character of. §§ 186-193. 

2. Conventions called to frame Constitutions for new States to 

be formed out of territory of the United States, organ- 
ized under its authority, or acquired in an organized con- 
dition from foreign States. §§ 194-216. 

(a). Such Conventions as have been assembled regu- 
larly, in pursuance of enabling Acts of Con- 
gress. § 195. 

(b). Such as have been convened irregularly, without 
enabling Acts. §§ 196-216. 
Treaties and deeds of cession bearing on this class of 

Conventions. §§196,197. 
Michigan Convention of 1835. History and character 

of. § 198. 
Action of Congress on the admission of Michigan into 

the Union. § 199. 
Michigan Conventions of 1836. History and character 

of. §§199,200. 
Observations on the Michigan Conventions. §§ 201-209. 
Opinion of John C. Calhoun. § 204. 
Opinion of Senator Ewing. § 205. 
Opinion of Senator Niles. § 206. 
Decision of the Supreme Court of Michigan as to the 

time when Michigan became a State. § 207. 



TABLE OP CONTENTS. 

Decision of the Supreme Court of the United States. 

§ 207. 
Dissenting opinion of McLean, J. § 208. 
Observations on these decisions and on the Michigan 

case. § 209. 
Other Conventions called without enabling Acts of 

Congress. General description of. §210. 
Kansas Convention of 1855, at Topeka. History and 

character of. §§ 211, 212. 
Kansas Convention of 1857, at Lecompton. History 

and character of. §§ 213-216. 
Opinion of President Buchanan respecting the Lecomp- 
ton Convention. §214. 
Refutation of President Buchanan, by Henry Winter 

Davis. §215. 
The Lecompton Constitution, action of Congress upon. 

The " English Bill." §216. 
3. Conventions called to revise the Constitutions of States, 

members of the Union. §§ 217-259. 
Various classes : — 

(a). Such as have been convened for legitimate con- 
stitutional purposes, regularly : — 
I. By the legislatures of the respective States, 
acting — 

1. In pursuance of special provisions of 

their Constitutions. §§ 217, 218. 
List of these Conventions, and observa- 
tions on them. § 218, and note. 

2. Under their general legislative power, 

without the authorization of their Con- 
stitutions. §219. 
List of the Conventions of this class. 
§219, note. 
H. By special bodies created for the purpose by 
the Constitution, called Councils of Cen- 
sors. § 220. 
(&). Such Conventions as have been called, for legiti- 
mate constitutional purposes, irregularly : — 
1 1. In disregard of constitutional provisions pre- 

' scribing particular modes in which only 

amendments to the Constitution should be 
effected. §§221-225. 
Pennsylvania Convention of 1789. History 

of. §§ 221-222. 
Delaware Convention of 1792. History of. 

§223. 
Maryland Convention of 1850. History of. 
§ 224. 



TABLE OF CONTENTS. xi 

Observations on the Conventions of this 
class. § 225. 
2. In defiance of the existing governments of 
the States concerned, though in pretended 
conformity to constitutional principles. 
§226. 
Rhode-Island Convention of 1841 — the so- 
called " People's Convention." History 
and character of §§ 226-246. 
Previous eflfbrts to secure a revision of the 

charter of Charles II. § 226. 
" Suffrage Associations." " People's Conven- 
tion " called. § 227. 
"People's Constitution" formed and pro- 
claimed. §§ 227, 228. 
Forcible attempts to carry it into effect. 

§ 228. 
Judicial decisions by State and Federal 
Courts relating to the " People's Constitu- 
tion." §§ 229-231. 
The Rhode Island question considered upon 

principle. §§ 232-246. 
Argument of B. F. Hallett. § 233. 
Argument of Daniel Webster. §§ 234, 235. 
Observations on Mr. Hallett's argument. 

§§ 236-246. 
Bearing of the Declaration of Independence 

on the question. § 240. 
Bearing of the Bills of Rights of the States 

generally on the question. §§ 241-244. 
The author's view confirmed by considering 
the doctrine of Passive Obedience or Non- 
Resistance, prevalent at and before the 
time of the Revolution. §§ 242-244. 
Bearing of the Bills of Rights of Virginia, 
Rhode Island, and Maryland on the ques- 
tion. §§ 245-246. 
(e). Secession and Reconstruction Conventions. 
§§ 247-259. 
Secession Conventions, History of the call of. 

§§247,248. 
Character of §§ 249, 250. 
Reconstruction Conventions. History of the call 

of §§ 250-258. 
Proclamation of President Lincoln. § 255. 
Proclamations of President Johnson. § 257. 
Character of the Reconstruction Conventions. 
§258. 



Xll TABLE OP CONTENTS. 

Montgomery Convention of 1861. History and 
character of. § 259. 
II. By whom Conventions should be elected. §§ 260-266. 
(a). The question considered upon principle : — 

1. In times of peace and constitutional order. § 260. 

2. When the sovereign political body is in a state of disorganization. 

§261. 
(6). The question considered in the light of precedents : — 

1. Of precedents since the Revolution. § 263. 

2. Of precedents during -the Revolution. § 263. 
Exceptional cases considered. §§ 264-266. 

CHAPTER V. 

OF THE ORGANIZATION AND MODES OF PROCEEDING OF CONVENTIONS. 

Of the constitution of Conventions. §§267-271. 

1. Who may be members of Conventions. §§ 267-269. 

2. Should Conventions consist of one Chamber or of two? §§ 270, 271. 
Of the internal organization of Conventions. §§ 272-274. 

Of the call to order. § 272. 

Of the officers of Conventions, temporary and permanent. " § 274. 

Reports of proceedings. § 274. 

Credentials and list of members. § 276. 

Should members of Conventions be sworn. §§ 277-283. 

What Conventions have, and what have not, administered an oath. Form 

of oath administered. § 277. 
Grounds of opposition to administration of an oath. § 278. 
Question as to form of the oath. Discussion in North Carolina, in 1835, 

and in Illinois, in 1862. §§ 279-283. 
Rules of Order. § 284. 

Committees. Employment of in Conventions. §§ 285-296. 
Different modes of proceeding in Conventions : — 

1. Without Committees. §286. 

2. With Committees. §§ 287-296. 

Different modes of proceeding with Committees — 

(a). With Committee of the Whole only. §287. 

(6). With a single Select Committee. § 288 

(c). With numerous Select or Standing Committees. § 289. 
Reasons in favor of Committee of the Whole. § 290. 
Objections to Committee of the Whole. § 291. 
Reasons in favor of Select or Standing Committees. § 292. 
Objections to such Committees. § 293. 
Precedents as to use of Committees. §§ 294, 295. 
Number of Standing Committees, how determined. § 296. 
By whom appointed. § 296. 
How Conventions employed whilst Standing Committees are preparing 

their reports. §297. 



TABLE OF CONTENTS. XIU 

Reports, how made. §§ 298-301. 

How disposed of in Convention. § 302. 

Committees on Revision, or on Phraseology and Arrangement. § 303. 

Signing of the Constitution, significance of the act. § 304. 

CHAPTER VI. 

OF THE POWERS OF CONVENTIONS. 

Meaning of the term power. § 305. 

General conception of the Constitutional Convention. § 306. 

Two theories as to the powers of Conventions. § 307. 

Instances in which the first theory has been propounded. § 308. 

Instances in which the second theory has been propounded. §§ 309, 310. 

The first theory, that of conventional sovereignty, a novelty. Its history. §§ 311, 

312. 
To refute the first theory the principal object of this work. § 313. 
Order of the discussion stated. § 314. 
I. The powers of Conventions considered with reference to their external rela- 
tions ; that is, particularly — 

(a). Their powers in relation to the sovereign, or to sovereign rights. 
Are Conventions possessed of sovereign powers ? §§ 315-318. 
Sense in which Conventions wield sovereign powers. § 319. 
(b). Powers of Conventions growing out of their relations to the state 
as a whole. Is a Convention a part of the governmental system 
of the state ? §§ 320, 321. 
Is a member of a Convention an officer ? §§ 322-324. 
Can a Convention fill vacancies in the governmental departments ? 

§ 325. 
Can it eject from office, or direct in the discharge of their duties, 

persons holding office in the government? §§ 326-330. 
Vacating ordinance of the Missouri Convention of 1865. §§ 327- 
330. 
(c). Powers of Conventions growing out of their relations to the electors f 
Their relations to the electors in general. §§ 331-334. 
Practical questions depending on those relations : — 

1. Can a Convention disfranchise any portion of the electors ? 

§§335-337. 
True theory of the suffrage. §§ 336, 337. 

2. Can a Convention assume the function of the electors to fill 

vacancies in its own ranks ? § 338. 

3. Can a Convention authorize the colleagues of a deceased or 

resigning member to name his successor ? § 339. 

4. Can a Convention issue precepts to the electors directing new 

elections to fill vacancies in its own ranks? §§ 340-347. 
Case in the Massachusetts Convention of 1853 stated. §§ 341, 

342. 
Argument of B. F. Butler, § 343. 



XIV ^ TABLE OF CONTENTS. 

Argument of B. F. Hallett. § 344. 

Reply of Marcus Morton. § 345. 

Reply of Joel Parker. § 346. 

Observations upon the Massachusetts case. § 347. 

5. Can the electors fill a vacancy in a Convention at any time 

and in any manner they please ? §§ 348, 349. 

6. Can a Convention receive as a delegate a person elected at a 

time or in a manner not provided by law ? § 350. 

7. Can a Convention limit the discretion of the electors in the 

discharge of their appropriate duties ? §§ 351-361. 
Case in the New York Convention of 1846. §§ 353, 354. 
Case in the Louisiana Convention of 1844. §§ 355-357. 
1 Observations on the Louisiana case. §§ 358-361. 

8. Have the electors power to instruct their delegates to Con- 

ventions ? §§362-364. 
(^d). Powers of Conventions growing out of their relations to the several 
departments of the government, legislative, executive, and ju- 
dicial. §§ 366-449. 

1. To the executive and judicial departments. § 366. 

2. To the legislative department. §§ 367-449. 

General powers of legislatures and Conventions contrasted. 

§§ 367-375. 
Two classes of questions considered : — 

(a). Questions relating to the powers of legislatures to bind 

Conventions, or of Conventions to nullify acts of 

the legislature. §§376-418. 
1. Can legislatures impose conditions, restrictions or 
limitations upon Conventions, or dictate their or- 
ganization or modes of proceeding ? §§ 3 76-409. 

General consideration of the question. §§ 377-383. 

Discussion of, in the Federal Convention. §§ 383- 
386. 

Discussion of, in the North Carolina Convention of 
1835. § 387. 

Opinion of the Supreme Court of Massachusetts 
on, in 1833. § 388. 

Observations upon this opinion. § 389. 

When an Act of a legislature calling a Conven- 
tion has been voted on by the people, what is 
the source of its validity ? §§ 389-409. 

Oj^inion of the Supreme Court of New York on 
this question. §§ 390-392. 

Observations upon this opinion. §§393-399. 

Discussion of the question in the Massachusetts 
Convention of 1853. §§ 400-403. 

Observations upon this discussion. §§ 404-406. 

Opinion of the Supreme Court of Illinois bearing 
on the question. §§ 407-409. 



TABLE OF CONTENTS. XV 

2. Can legislatures bind Conventions to submit the 

fruit of their labors to the people ? §§ 410- 
414. 
Discussion of this question in the Illinois Con- 
ventions of 1847 and 1862. § 414. 

3. When a Convention has submitted a Constitution 

at a particular time or in a particular manner, 
can the legislature alter the time or mode of 
submission? §§415-418. 
Case in Kansas considered. § 415. 
Observations on the Kansas case. §§ 416, 417. 
Opinion of the Supreme Court of Delaware, cited. 
§418. 
(6). Questions as to the power of Conventions to legislate, 
or to discharge functions imposed by the Federal 
Constitution upon legislatures. §§ 419-449. 

1. Is a Convention possessed of the power of ordi- 

nary legislation ? §§ 420-441. 
The question considered — 

First, in the light of principles. §§ 420-425. 
Secondly, in the light of custom and precedent. 
§§ 426-441. 
Practical questions discussed : — 

(a) . Has a Convention power to repeal Acts of 
the legislature ? Chicago Ordinance of 
the Illinois Convention of 1862. §§ 430- 
434. 
(6). Have Conventions power to appropriate 
money out of the public treasury ? 
§§ 435-441. 

2. Can a Convention act as a legislature in matters 

required by the Federal Constitution to be 

transacted by the legislatures of the States ? 

§§442-447. 
There may be two cases : — 

(a). Can a Convention assume, as a legis- 
lature, to prescribe the " times, places, 
and manner of holding elections for 
senators and representatives " in Con- 
gress. Case in the Illinois Convention 
of 1862. §§ 442-446. 

(b). Can a Convention, as a legislature, ratify 
proposed amendments to the Federal 
Constitution? §447. 

3. Can a Convention limit a discretion confided to a 

State legislature by the Constitution of the 
United States ? §§ 448, 449. 
II. The powers of Conventions considered with reference to their internal re- 



XVI TABLE OF CONTENTS. 

latlons ; to the perfecting of their organization ; to the maintenance of 
discipline over their own members, or over strangers ; and to the prolon- 
gation or perpetuation of their existence. §§ 450-478. 
General view of the powers of Conventions in this respect. §§ 451-453. 
First. Of powers expressly given. § 451. 
Second. Of implied or incidental powers. §§ 453-470. 
Power to appoint their own officers. § 454. 
Power to supply themselves with stationery, public journals, reporters, 

&c. §§ 454-457. 
Power to order printing. § 458. 
Power to make and enforce rules of order. § 459. 
Power to arrest or punish offences committed against the body itself or 
its members. §§ 459-472. 

1. For offences committed by their own members, in their own 

presence. §§ 460-464. 

2. For offences committed by strangers. §§ 465-470. 
Case in the Illinois Convention of 1862. §§ 467, 468. 
Case in the Louisiana Convention of 1864. §§ 479, 470. 

Privileges of members of Conventions. §§ 471, 472. 

Power of Conventions to prolong or perpetuate their existence. §§ 473- 
478. 

Reconvocation of the Louisiana Convention of 1864, in July 1866, con- 
sidered. §§ 474-478. 

CHAPTER VIL 

OF THE SUBMISSION OF CONSTITUTIONS TO THE PEOPLE. 

Duty of Conventions to submit the fruit of their labors to the people. Ground 

of the duty. § 479. 
The duty considered in three cases : — 

I. Where neither the Convention Act nor the Constitution requires submis- 
sion. §5 480, 481, 

IL Where submission is expressly required. §§ 482, 483. 

in. Where submission is expressly dispensed with. §§ 484-486. 
Precedents as to submission. § 487 and notes. 
Observations on these precedents. §§ 488-490. 

Cases of exceptional submission, and of non-submission considered. §§ 491-495. 
Case of the South Carolina Convention of 1778. § 491. 
Case of the Pennsylvania Convention of 1789. § 491. 
Case of the New York Convention of 1801. § 492. 
Cases of the Secession and Reconstruction Conventions. § 493. 
Peculiar mode of submission in Vermont. § 494. 
Cases of the Territories forming their first Constitutions. § 495. 
Separate topics necessary to a complete exposition of the subject of this chapter, 

stated. § 496. 
L By whom the particular regulations necessary for submitting Constitu- 
tions ought to be made. §§497-499. 



TABLE OF CONTENTS. XVU 

Theoretical view of the question. § 497. 
Precedents. §§498,499. 
n. To whom Constitutions ought to be submitted. §§ 500-509. 
Theoretical view of the question. § 500. 
Precedents. § 501-509. 

General current of the precedents stated. § 501. 
Exceptional cases considered. §§ 502-509. 

Cases of the two Constitutions of the United States. §§ 502, 503. 
Cases of the Virginia Constitutions of 1830 and 1851, and of those of 
Rhode Island of 1842, and of West Virginia of 1863. §§ 508, 509. 
Cases of the Tennessee Constitution of 1834, and of the Maryland 
Constitution of 1864. § 509, note. 
in. Nature of the act performed by the persons or body to whom submis- 
sion is made. §§ 510-513. 
The act compared with the three classes of acts — legislative, executive, 
and judicial. 

(a). Is it a judicial act ? §510. 

lb). Is it an executive act ? §§ 510-512. 

The act compared with the three kinds of executive acts : — 

1. Administrative acts. § 510. 

2. The negative, or veto. § 511. 

3. The act of signing or assenting to bills. § 512. 
(c). Is it a legislative act ? § 513. 

Opinion of Mr. Austin. § 513, concluding note. 
IV. In what manner Constitutions should be submitted. §§ 514-520. 
Theoretical view of the question. §§ 514, 515. 
Precedents. §§ 516-520. 

Case of the Lecompton Constitution. §§ 517-520. 
V. How Constitutions should be certified and promulgated. §§ 521-524. 
Precedents stated and considered. §§ 522-524. 



CHAPTER Vm. 

OF THE AMENDMENT OF CONSTITUTIONS. 

Necessity of some provision for amending Constitutions. § 525. 
Modes of effecting amendments here and abroad contrasted. § 526. 
Early views on the subject in this country, unsettled. § 527. 
General policy of the American States stated. §§ 528, 529. 

I. Modes provided by the various American Constitutions for effecting 

amendments : — 
j First mode, that by the agency of Conventions. § 530, and notes. 

' Second mode, that by the agency of our General Assemblies. §§ 530, 

531, and notes. 
II. Excellences and defects of these two modes. § 531. 
(a). The mode by Conventions. §§ 526-531. 

Requisites for safety, when this mode is employed. §§ 532-534. 

b 



xvm TABLE OP CONTENTS. 

^ First check or safeguard, by increasing the majority necessary 

to call a Convention. § 533. 
/ Second check, or safeguard, by submission of the question of 
calling Conventions to the people. § 534. 
Precedents. §§ 535-537. 
Provisions of our Constitutions on the subject, of three kinds : — 

1. Such as look to a periodical expression of the sense of the 

people on the question of calling a Convention. § 535. 

2. Such as look to a vote of the people upon the question, 

whenever such a step should seem to the legislature to 
be advisable. § 536. 

3. Such as impose restrictions upon the call of Conventions, 

in negative terms. § 537. 
(6). The mode by the agency of the legislature, without a Convention. 
§§ 538-543. 
Requisites for safety, when this mode is employed. §§ 538-540. 
Particular provisions of the various Constitutions prescribing this 
mode. §§ 541-543. 
. "Whichever of these two modes is employed, the prior intervention 
I of the legislature generally necessary. §§ 544-546. 
i Exceptions considered. §§ 544-545. 
Practical questions relating to the subject of this chapter. §§ 547-574. 

I. What is the nature of the act of a legislature when it participates in 
the amending of a Constitution in either of the modes indicated V 
§§ 547-550. 

1. So far as it prescribes a rule of action, its act is a law. §§ 547, 

548. 

2. So far as it simply affirms the necessity or expediency of amend- 

ments, it is a recommendation merely, and not a law. §§ 549, 
550. 
Opinion of Mr. Webster and others in the Massachusetts Conven- 
tion of 1820. § 549. 
Opinion of Mr. Thompson, in the Virginia Convention of 1829. 
§ 550. 
II. To what extent may a legislature propose specific amendments to a Con- 
stitution ? §§ 551-555. 
Cases of The State v. Cox^ and of Eason v. The State, decided by the 

Supreme Court of Arkansas, stated. §§ 551-553. 
Observations upon these cases. §§ 554, 555. 
III. Should specific amendments to a Constitution, made through the agency 
of a legislature, be submitted to the Executive for approval ? §§ 556- 
562. 

1. The question considei'ed with reference to the Federal govern- 
ment. §§ 556-560. 
Precedents. Opinion of the Supreme Court of the United States. 

§557. 
Discussion in the United States Senate, in 1803. § 558. 
Discussion in the United States Senate, in 1865. §§ 559, 560. 



TABLE OF CONTENTS. xix 

2. The question considered with reference to the State governments. 
§§ 561, 562. 
IV. When an amendment to the Federal Constitution has been regularly 
proposed for ratification, to the State legislatures, by Congress, and 
one of those bodies has passed upon the question in the negative, 
may a subsequent legislature reconsider and reverse that action ? 
§ 563. 
V. When a Constitution contains a provision for its own amendment, in 
either of the modes above specified, can another and different mode 
\ be adopted, or must the mode prescribed be alone pursued ? §§564- 

574. 
There may be two cases : — 

1. Where the Constitution contains provisions forbidding amendments 

except In the mode therein prescribed. § 564. 
Precedents. §§ 565, 566. 

Opinion of Senator Bayard, of Delaware. § 567. 
Opinion of Senator Johnson, of Maryland. § 562. 
Observations on these opinions. §§ 569, 570. 

2. Where the terms of the Constitutional provision are permissive, with- 

out restrictive words. §§ 571-576. 
Precedents. §§ 571-573. 

Opinion of the Supreme Court of Massachusetts. §§ 574-575. 
The question, whether these principles apply to amendments to the 

Federal Constitution, considered. § 576. 

APPENDIX. 

A. List of all the Conventions thus far held in the United States, p. 533. 

B. Objections of the New York Council of Revision to the New York Conven- 

tion Act of 1820. p. 538. 

C. Opinion of the Judges of the Supreme Judicial Court of Massachusetts, 

respecting the powers of Conventions to propose amendments to the 
Constitution, p. 540. 

D. Opinion of the Judges of the Supreme Court of New York, respecting the 

power of the legislature to modify a Convention Act which has been 
voted upon by the people, p. 542. 

E. Official proceedings culminating in the reassembling of the Louisiana Con- 

vention of 1864, in July, 1866. p. 545. 



CONSTITUTIONAL CONVENTIONS. 



CHAPTER I. 

§ 1. It is my purpose, in the following pages, to inquire into 
the history, powers, and modes of proceeding of the Consti- 
tutional Convention, one of the most important and most 
characteristic of the political institutions of the United States. 

Of the American system of government, the two leading 
principles are, first, that laws and Constitutions can be rightfully 
formed and established only by the people over whom they are 
to be put in force ; and, secondly, that the people being a cor- 
porate unit, comprising all the citizens of the state, and, there- 
fore, too unwieldy to do this important work directly, agents or 
representatives must be employed to do it, and that, in such 
numbers, so selected, and charged respectively with such func- 
tions, as to make it reasonably certain that the will of the peo- 
ple will be not only adequately but speedily executed.^ ^ 

The function of framing and enacting the statute law is 
commonly, by the practice of all representative governments, 
intrusted to a numerous body, called a legislature. Constitu- 
tions, on the other hand, considered as written instruments, are 
the work of various agencies, according to the genius or special 
circumstances of the states concerned, some being formed by 
the executive branch of the government, some by the legisla- 
ture, and some by a body for that purpose specially chosen and 
commissioned. Thus, in England, this duty is exclusively com- 
mitted to King, Lords, and Commons in Parliament assembled. 
Under the imperial regimes of the first and the third Napoleons, 
in France, the plebiscites, determining the form and powers of 
the government, though nominally the work of the Senate, were 
and are really dictated by those monarchs. With us, in Amer- 

1 See Works of Daniel Webster, Vol. VI. pp. 221-224. 
X 



2 PRINCIPLES OP AMERICAN GOVERNMENTS. 

ica, there is set apart a special agency, to which is confided 
wholly, or mainly, the business of fundamental legislation, — the 
Constitutional Convention. It is this agency which frames our 
Constitutions, and which, generally, as changes in them become 
necessary, is charged with maturing the needed amendments. 
In some cases, under authority for that purpose expressly given, 
it both forms and establishes our fundamental codes, but com- 
monly it acts in conjunction with some other department of the 
existing government ; the one presenting, after mature delibera- 
tion, in the form of proposals, a connected scheme, and the 
other by its sanction imparting to that scheme the force and 
vigor of law. 

§ 2. To any society, far enough advanced in civilization to 
demand as well the ascertainment as the protection of its civil 
and political rights, no institution could be of more interest than 
one charged thus with the role of both founder and restorer of its 
social machinery. Is this institution, it might be asked, subject 
to any law, to any restriction 1 What claims does it itself put 
forth, and what do the precedents teach, in relation to its nature 
and powers ? When called into existence, is it the servant, or 
the master, of the people, by whom it was spoken into being ? 
Whatever be its relations to the general source of political 
power, whether those of subordination or of independence, what 
is the place in our system, what are the relations to other gov- 
ernmental agencies, the normal functions and powers, of an 
institution, that, however hedged about by legal restraints, obvi- 
ously exhibits more features that are menacing to republican 
liberty than any other in our whole political structure. 

§ 3. To the interest attaching to the Convention, thus, from 
abstract considerations, has been added a greater, resulting from 
the connection of that institution with recent political events. 
The desolating war of secession, which has just closed, could 
hardly have been inaugurated but for the use made by the re- 
volting faction of that institution. For reasons, which will be 
more fully explained hereafter, it had come to be a maxim in the 
practical jurisprudence of the United States, at least in some 
of the States, that whatever had been done by a Constitutional 
Convention, had been done by the people, "in their primary and 
sovereign capacity," and was therefore absolutely unquestion- 
able, on legal or constitutional grounds ; and there were not 



CONVENTIONS AND SECESSION. 3 

wanting those who arrogated to that ill-defined assembly, as by 
an extension to it of the absurd maxim, that " the voice of the 
people is the voice of God," — an omnipotence transcending that 
higher law, to which ordinary legislative assemblies acknowledge 
themselves at all times subject. When to this, which is deemed 
one of the most impudent heresies of our times, was added its 
fellow, the dogma of State sovereignty, with its corollary, the 
duty of State allegiance, the transformation of a loyal commu- 
nity into a band of parricides seeking to pull down the edifice 
of our liberties, need be but the work of a day. To effect it, 
there was needed but a vote of a few conspirators, sitting as a 
Constitutional Convention, pretending to utter the voice of the 
people, and refusing to submit their ordinances to the test of a 
popular vote, under the false plea that neither the theory of the 
Convention system nor the practice of the fathers made such a 
submission necessary. 

This picture of treachery and cunning, playing upon popular 
ignorance for their country's ruin, describes with precision the 
historical drama that culminated in the secession of the States 
of the South, in 1860-1. For, surely, it is not too much to say 
that without the moral effect of those disorganizing maxims, 
which impressed upon Southern consciences the duty of " going 
with one's State," there could have been no victories won by the 
armies of treason, even had an outbreak of hostilities been 
possible. 

Of an institution to which are conceded a position so impor- 
tant and influence so decisive, but of which the true character 
and relations are so ill understood as to give rise to wide-spread 
misapprehensions, no apology is needed for an attempt to de- 
velop the history and illustrate the true nature and principles. 

§ 4. Before entering upon the task indicated, it is important 
to clear the way by carefully discriminating the institution in 
question from others known under the same general designation 
of Conventions, but differing from it in their essential principlea 
and functions. To do this, will be the principal object of this 
chapter. 

There are known to the social life of our times, in America* 
four species of Conventions, namely : — 

I. The Spontaneous Convention, or Public Meeting. 

II. The Ordinary Legislative Convention, or General 
Assembly. 



4 SPONTANEOUS CONVENTIONS. 

III. The Revolutionary Convention. 

IV. The Constitutional Convention. 
These will now be considered in their order. 

§ 5. I. By Spontaneous Conventions, I mean those volun- 
tary assemblages of citizens, which characterize free communi- 
ties in advanced stages of civilization, having for their purpose 
agitation or conference in respect of their industrial, religious, 
political, or other social interests. These gatherings are at once 
the effects and the causes of social life and activity, doing for 
the state what the waves do for the sea : they prevent stagna- 
tion, the precursor of decay and death. They are among the 
most efficient manufactories of public opinion ; or, rather, they 
are public opinion in the making, — public opinion fit to be the 
basis of political action, because sound and wise, and not a 
mere echo of party cries and platforms. Spontaneous assem- 
blages, for such purposes, of the masses of a people, betoken a 
very high state of civilization, or instincts that are sure to de- 
velop into it. To be possible, in perfection, as we see them 
amongst us, freedom must be ripe and well-nigh universal. But 
when rulers and social institutions do not favor them, to theii 
occurrence at all would be necessary a native passion for liberty 
strong enough to break all chains, and which could be daunted 
by no perils. We are prepared, therefore, to believe that it is 
only our own race, here and in England, that has thus far suc- 
cessfully vindicated the right of freely assembling. This right 
was asserted in England as early as the twelfth century,^ history 
telling us of the '•'■ conventus publicos propria' authoritate" ^ or 
voluntary meetings of the people, under the protection of the 
common law. With some fluctuations, as the work of social 
development proceeded, this right became more firmly rooted in 
the parent soil, and from it a vigorous scion was planted in 
America, which has exhibited a still stronger vitality, and now 
overspreads the land.^ A common and most invaluable pro- 
vision of our constitutions. State and Federal, guarantees to the 
people the right " peaceably to assemble and petition the gov- 
ernment for a redress of grievances." The right, thus expressed, 

1 For a most excellent view of the vicissitudes of this right under the EnglL<?h 
Constitution, see May's Constitutional History of England, Vol. II. ch. ix. 

2 Hinton's Hist. United States, Vol. II. pp. 324, 325. 

3 May's Const. Hist. Eng., Vol. II. ch. ix. 



LEGISLATIVE CONVENTIONS. 5 

involves those of discussing all measures of the government ; 
of embodying in resolutions or remonstrances the general senti- 
ment in regard to the policy and the acts of the public author- 
ities ; and, in general, of exercising the privilege, without which 
freedom is impossible, of saying and hearing whatsoever one 
pleases, being at the same time responsible for abuses of that 
privilege.^ Such is the Spontaneous Convention : a body which 
meets upon the call of any individual ; adjourns when it pleases ; 
is wholly unofficial ; whose determinations have no efficacy 
whatever, except as expressions of matured or maturing opin- 
ion ; which is subject to no laws but the lex parliamentaria. — 
common sense applied to the action of numerous assemblies, — 
and the law which enjoins upon all men to keep the peace; 
and yet a body which is quite as important to the continued 
healthy life of a commonwealth as either of the four species of 
Conventions mentioned.^ 

§ 6. II. The second species of Conventions, consisting of our 
General Assemblies, is so well known, that I need not dwell 
upon it. A General Assembly is, in our American system, a 
collection of representatives of the people, freely elected in pur- 
suance of the Constitution, and empowered to enact the ordinary 
statute law. Deriving its existence and powers from the people, 
through the Constitution, it can do nothing except by the author- 
ity contained in that instrument, and is, therefore, official, or vi- 
carious, but at the same time subaltern, — the people being the 
principal and paramount source of power. Yet, as we shall 
have occasion to note hereafter, though subordinate in relation 
to the people, considered as the creator of the government and 
Constitution, the legislature is nevertheless prima inter pares, 
when compared with other departments of the government ; or, 
as it has been expressed by speculative writers, is more nearly 
sovereign than any of the departments which are ordinarily 
regarded as coordinate with it. 

1 " This is true liberty, when free-born men 
Having to advise the public may speak tree, 
Which he who can, and will, deserves high praise ; 
Who neither can nor Avill may hold his peace. 
What can be juster in a state than this ? " 

Milton, Ai-eopagitica, from Eukipides. 
2 See remarks of Dr. Lieber on this class of Conventions, Political Ethic*, 
Part II. p. 467. 



6 EEVOLUTIONARY CONVENTIONS. 

§ 7. III. The third species of Conventions, as its name im- 
plies, is a part of the apparatus of revolution. It consists of 
those bodies of men who, in times of political crisis, assume, oi 
have cast upon them, provisionally, the function of government. 
They either supplant or supplement the existing governmental 
organization. The principal characteristics of this species are, 
that they are dehors the law ; that they derive their powers, 
if justifiable, from necessity, — the necessity, in default of the 
regular authorities, of protection and guidance to the Common- 
wealth, — or, if not justifiable, from revolutionary force and vio- 
lence; that they are possessed accordingly to an indeterminate 
extent, depending on the circumstances of each case, of govern- 
mental ijowers ; finally, that they are not subaltern or ancillary to 
any other institution whatever, but lords paramount of the entire 
political domain. To this may be added, that they are of no 
definite numbers or organization, comprising sometimes one 
and sometimes several chambers, and composed indifferently of 
ex-officers of the government that was, of persons possessing 
neither office nor the qualifications requisite for it, nor even for 
the elective franchise, or of a mixture of all of these together, 
as chance may have tossed them to the surface. The general 
purpose of the Revolutionary Convention, moreover, is to bridge 
over a chasm between two orders of things : an order that has 
expired or been extinguished ; and an order emerging, under the 
operation of existing social forces, to replace it. In short, a 
Revolutionary Convention is simply a Provisional Govern- 
ment. 

§ 8. Examples of the Revolutionary Convention have been 
numerous in the political history of the world, and they are be- 
coming daily more so. Among the most famous and, for our 
purpose, the most important, are those held in England in 1660 
and in 1689. 

In those cases the ruling dynasty having abdicated the throne, 
or been expelled from it, there was in the kingdom not only no 
organized government, but no central authority practically com- 
petent to institute one. There was, it is true, the people of 
England, but they could not so assemble as to act as a unit. 
The parliament had ceased, in law, to exist with the reign of 
the monarch by whose writ it had been summoned, and no new 
parliament could be legally called, because for that the royal 



REVOLUTIONARY CONVENTIONS IN ENGLAND. 7 

writ was absolutely necessary. In these alarming crises, and as 
the last and only resource for temporary government, as well as 
for providing the initial points of new organizations, Conventions 
were summoned. That called in 1660 consisted of persons 
elected by the several constituencies of the realm, as for a lawful 
parliament, but elected illegally, on the recommendation of a 
rump of the old Parliament, which had been dispersed by the 
army under Richard Cromwell, and, for that reason, as Ma- 
caulay observes, more accurately described as a Convention^ as 
having been called without the royal writ.^ The Convention of 
1689, summoned by the Prince of Orange, afterwards Wil- 
liam III., on his accession by force to the throne left vacant by 
James II., consisted of persons elected in a similar manner, on 
the call of the usurping prince, issued at the recommendation 
of the lords spiritual and temporal at the time in London, 
forming a quasi House of Lords, and of old members of the 
House of Commons, together with the magistrates of the city 
of London, acting as a House of Commons. This Convention, 
also, though made up of members chosen by the electors for 
members of Parliament, in their several districts, was not styled 
or considered a Parliament, because called by a person not con- 
stitutionally authorized, acting on the advice of an assembly, 
which, though regarded by the nation with a large measure of 
the respect due to a Parliament, on account of the eminence 
and former official station of its members, was yet without a 
shadow of legal authority. The proceeding was revolutionary, 
and so universally admitted to be. Such were the two great Eng- 
lish Conventions, the models after which most subsequent bodies 
of the same class have been formed or organized, both in this 
country and in Europe, and of which, as we shall see, our Con- 
stitutional Conventions are special adaptations or modifications. 
They were Provisional Governments, — the only governments 
England had during the periods of their existence. And for our 
purpose it will be interesting to note further, that the English 
Convention of 1689, having taken steps, as a revolutionary body, 
to settle the succession to the throne, passed a bill declaring 
itself to be a parliament, and from that time acted as such in 
conjunction with the king it had itself called to the throne.^ 

1 Macaulay, Hist. Eng., Vol. I. ch. i. 

2 Id. Vol. il. ch. xi. 



8 EEVOLUTIONARY CONVENTIONS IN AMERICA. 

§ 9. Interesting examples of the Eevolutionary Convention 
^are found in our own history. The first occurred in New Eng- 
land simultaneously with the English Convention of 1689, its 
assembling being the result, in part, of the same causes which 
led to that, but, in part, of causes local to New England. Both, 
however, were called and composed in a similar manner, and 
organized after the same model, that of 1660, convened at the 
time of the Restoration. 

The leading facts in the history of that held in New England 
are as follows : — 

Whilst the tyrannical acts of James II. were, in England, ex- 
citing the discontents which finally led to his abdication, those 
of Sir Edmond Andros, the Governor of Massachusetts, were 
arousing the fiercest opposition in New England, against both 
the colonial and the imperial administrations. It is believed 
that as early as January, 1689, before the news of the landing 
of the Prince of Orange in England had reached the colony, 
arrangements had been made in the latter to rise against the 
unpopular governor. So soon as that news arrived an outbreak 
occurred. On the 18th of April, a " Declaration of the Gentle- 
men, Merchants, and Inhabitants of Boston and the country 
adjacent," was published, recounting their oppressions, and an- 
nouncing their purpose to " seize upon the persons of those few 
ill men which have been (next to our sins) the grand authors of 
our miseries." The governor and the magistrates and crown 
officers adhering to him, were accordingly thrown into prison ; 
the castle was occupied by colonial militia, and an English frig- 
ate, lying in the harbor, was forced to surrender.^ On the day 
following this revolutionary outbreak, the leaders in the move- 
ment with twenty-two others, whom they now associated, formed 
themselves into a Provisional Government, under the name of a 
" Council for the Safety of the People and Conservation of the 
Peace." Feeling the weakness of their position, since they 
" held their place neither by deputation from the sovereign nor 
by election of the people," and hesitating to set up again the 
charter, " formally condemned by the King's courts," " they de- 
cided to call a Convention, to consist of two delegates from each 
town in the jurisdiction, except Boston, which was to send four." 
This Convention met on the 9th of May, and attempted to put 
1 F&\frey'& Hist. New Eng., Vol. III. pp. 574-587. 



REVOLUTIONARY CONVENTIONS IN AMERICA. 9 

the charter in force, but meeting with opposition from the mag- 
istrates, steps were taken to call a second Convention with 
" express instructions from their towns." Fifty-four towns sent 
delegates to this latter Convention, the large majority of them 
with instructions to insist on the resumption of the charter. 
After two days' debate, the governor and magistrates, chosen at 
the last election under the charter, were prevailed upon " to assume 
the trusts committed to them, and, in concert with the delegates 
recently elected, to form a General Court," or Legislature, " and 
administer the colony, for the present, according to the ancient 
forms." 1 

Two days after this revolutionary government was established, 
a ship arrived from England with the news that the revolution 
there had succeeded, and bringing orders to the authorities to 
proclaim King William and Queen Mary. 

The Convention, organized as above stated, by which this 
revolution was effected, was evidently of the species I have de- 
nominated Revolutionary Conventions. It rested for its warrant 
upon necessity, and sought its ends through force. It was a 
government, intended to supplant another government, and not 
merely a political institution designed to be subservient to a 
government conceived of as existing in full activity. 

§ 10. Thus the Revolutionary Convention became domesti- 
cated in America. Since this first appearance, there have been 
numerous others, a few during the colonial condition, but most 
of them in the course of our two great civil revolutions, those 
of 1776 and 1861. As we shall see in a subsequent chapter, 
most of the organizations, by which, under the names of " Pro- 
vincial Conventions," or " Provincial Congresses," the first of 
those revolutions was consummated, and all of those by which 
the late secession movement was carried through, were strictly 
Bevolutionary Conventions. 

One of the best known examples of the Revolutionary Con- 
vention is the National Convention, by which was engineered 
the bloody overthrow of the old feudal monarchy of France at 
the close of the last century. Enough has been said, however, 
to show the characteristic features of an institution, too often, as 
we shall see, confounded with the Constitutional Convention, to 
which I now pass. 

1 Palfrey's Hist. New Eng., Vol. HI. pp. 587-589. 



10 CONSTITUTIONAL CONVENTIONS. 

§ 11. IV. The last species of the Conveniioii is the Consti- 
tutional Convention. It differs from the last preceding, in 
being, as its name implies, constitutional ; not simply as having 
for its object the framing or amending of Constitutions, but as 
being within, rather than without, the pale of the fundamental 
law; as ancillary and subservient and not hostile and paramount 
to it. This species of Convention sustains an official relation to 
the state, considered as a political organization. It is charged 
with a definite, and not a discretionary and indeterminate, func- 
tion. It always acts under a commission, for a purpose ascer- 
tained and limited by law or by custom. Its principal feature, 
as contradistinguished from the Revolutionary Convention, is, 
that at every step and moment of its existence, it is subaltern, — 
it is evoked by the side and at the call of a government preexist- 
ing and intended to survive it, for the purpose of administering 
to its special needs. It never supplants the existing organization. 
It never governs. Though called to look into and recommend 
improvements in the fundamental laws, it enacts neither them 
nor the statute law ; and it performs no act of administration. 
As John Randolph said in the Virginia Convention of 1829, it is 
called as counsel to the people, — as a state physician, to pro- 
pose remedies for the state's diseases. But it is a physician 
whose ministrations are confined to the extraordinary maladies 
requiring a fundamental change in the Constitution, not to those 
constantly recm-ring but petty disorders which demand the inter- 
position of the ordinary legislature. 

§ 12. It is apparent that institutions, whose definitions thus 
mutually exclude each other, cannot be the same, however simi- 
lar the names by which they are popularly known.^ 

But it may happen, (instances will be hereafter mentioned in 
which it has happened,) that the Constitutional Convention 
raay, by usurpation, assume one or more of the powers of the 
Revolutionary Convention ; or that the latter may exercise those 
of the former. How, in such a case, is the usurping body to 
be classed ? This question is one of great importance, but is 
susceptible of a ready answer. 

1 I am gratified to be able to fortify myself in the distinctions here made be- 
tween Constitutional and Revolutionary Conventions, by the authority of the 
South Carohna Court of Appeals, in cases to which, when the text was written, 
my attention had not been drawn. See opinion of Justice O'Neall in the so- 
called Allegiance Cases, 2 Hill's S. C. R. 222. 



HISTORICAL SUMMARY. 11 

A Revolutionary Convention, because it is, ex vi termini^ un- 
limited, in respect of both the kind and the degree of its powers, 
may take upon itself the functions of either of the three lower 
species of conventions, under the same warrant by which it jus- 
tifies the assumption of revolutionary powers. A body which 
can, violently and without law, uproot all existing institutions, 
can clearly do the lesser act of digesting, or even of enacting, 
amendments to the Constitution. But, in doing so, it does not 
change its original character ; it is still a Revolutionary Conven- 
tion, and all its acts must stand on the footing of those which 
involve the widest stretch of power. 

But the converse of this proposition does not hold true. If a 
Constitutional Convention step outside the circle of the law, it 
does not continue to be a Constitutional Convention, but, so 
far, becomes that whose powers or methods it assumes, — a 
Revolutionary Convention. It leaves the domain of law, which 
is one of specified and restricted powers, and enters upon that 
of arbitrary discretion, within which law is silent, and where he 
is master who wields the greater force. 

Whenever, therefore, a Constitutional Convention, appointed, 
as we shall see it usually is, for a specific duty under the Con- 
stitution, presumes to overpass the limits imposed by its com- 
mission, by custom, or by the maxims of political prudence, 
and to do acts requiring the exercise of a revolutionary discre- 
tion^ it ceases to be a Constitutional, and becomes, in the eye of 
the law, ah initio, a Revolutionary Convention. 

§ 13. If I mistake not, in the confounding of the distinctions 
noted in the preceding sections between the Constitutional and 
the Revolutionary Convention, will be found the origin of the 
most fatal misconceptions attaching to any part of our political 
system. To show how those misconceptions arise, as well as to 
obviate their eff*ects by bringing into as clear a light as possible 
the distinctions indicated, it is necessary to inquire into the 
genesis and historical development of the Constitutional Con- 
vention. 

The history of that institution may be summed up in a few 
words ; it is an adaptation to the exigencies of constitutional 
life and government, in the United States, of the Revolutionary 
Convention, as derived from our English ancestors of 1660 and. 
1689. How the transformation occurred, by which the wild 



12 HISTORICAL SUMMARY, 

scion from the woods was domesticated in the garden of the 
Constitution and made to subserve the purposes of regulated 
life, will now be shown. 

When the American colonies assumed the position of in- 
dependent States, the revolt, by which the change in their 
political relations was accomplished, was engineered by revo- 
lutionary conventions in the several States, patterned after those 
described in the previous sections of this chapter. In other 
words, our fathers borrowed the revolutionary machinery which 
history showed to have been so efficacious in the time of 
Charles 11. and James IL, as they also, in general, inherited the 
political principles and the forms of administration of the 
mother-country. Thus, the institution was planted upon Amer- 
ican soil. 

The next step, if less obvious, was not less important. The 
Revolution accomplished, when our fathers came to embody the 
rights achieved by it in institutions independent of the crown, 
two circumstances led them to establish governments limited to 
the exercise of granted powers. The first of these was affection 
for their charters, so long, in many of the colonies, the most 
effective barriers against parliamentary oppression ; the second, 
apprehension of an American monarchy, — a mere phantom, as 
we now know, but a phantom which, at that time, to many 
imaginations, threatened immediate and serious evils. How- 
ever this may be, the tendency indicated was universal, and 
has given character to our political institutions to this day. 

But it was not forgotten that the colonial charters were mere 
royal grants, and that the tenures by which they were held had 
sometimes been very insecure. Here, it is true, there was no 
sovereign authority but the people, represented chiefly by the 
General Assemblies, a circumstance which might be thought to 
render the wrongful abrogation of their charters improbable, 
if not impossible. But as the worst oppressions, experienced 
by them as colonies, had been at the hands of Parliament, — a 
popular assembly, in theory, if not in fact, representing the 
Commons of the whole empire, — might not their own assem 
blies in time become their oppressors, especially if allowed to 
retain not only the power of ordinary legislation, but that tran- 
scendent one exercised by the English Parliament, of framing 
the organic law ? 



HISTORICAL SUMMARY. 13 

This apprehension, nearly universal at the time of our separa- 
tion, led the statesmen of the Revolution to seek some other 
depositary of the latter power. This they found in Conventions, 
called by the governments in force in the several colonies, 
modelled, in point of structure and organization, after the Rev- 
olutionary Conventions, with which they were so familiar, but 
charged with the single function of maturing the charters, or 
Constitutions, rendered necessary by the altered condition of 
their affairs. As thus used, the Convention ceased to be the 
revolutionary body w^iich had alone been known by that name 
in former times. But it was the same institution, for our 
fathers knew no other, but the same with important differences. 
Brought into operation as a regular constitutional agency, in aid 
of a system established, it was shorn of the extraordinary 
powers possessed by it when it was itself the government ; the 
government, too, of a state in a time of social upheaval and 
transition, in which the laws were silent, and those intrusted 
with the public administration were restrained by no law but 
that of the strongest. 

§ 14. It is not my purpose here to trace at any great length 
the limits of this new development. It is enough to observe, 
that the change began with the Revolution, of the fruits of 
which it constituted so valuable and characteristic a part. It 
was not accomplished, however, in a moment, nor can it be said 
to be even yet completely consummated, since there are doubts 
and misconceptions widely prevalent regarding it, which are in- 
consistent with the idea of a perfect development of the new 
institution. An important step in that development has only 
just now been taken, in the case of the Lecompton Convention, 
so-called, of the Territory of Kansas. In the discussion of that 
case, in 1857-9, the question, whether or not a Constitutional 
Convention has power either to refuse to submit the fruit of 
its deliberations to those who are to be governed by it, or to 
submit it to them in such a way as to deprive them sub- 
stantially of a voice in determining its form and character, was 
for the first time definitively settled. The same process will 
doubtless continue in the future. 

When the first Constitutions were framed for the colonies, in 
1776, the limits and distinctions, above explained, were far less 
understood than they have since become. In a subsequent 



14 MISCONCEPTIONS REGAEDING CONVENTIONS. 

chapter it will be seen that the most important principle in the 
Convention system — that which requires the Constitutional Con- 
vention to be kept totally disconnected, as well in theory as in 
practice, from the Revolutionary Convention — was sometimes, 
in those early days, disregarded. The statesmen of the Revolu- 
tionary period, though familiar with the principles and, to some 
extent, with the administration of the English government, were 
necessarily less so with those that were springing up about 
them ; and of the features indispensable to be impressed upon an 
old institution coming now to be employed for a new constitu- 
tional purpose, so as to render its working easy and safe, they 
were wholly ignorant. Accordingly, in their first essays at con- 
stitution making, partly from this ignorance and partly from the 
urgent needs of the time, they allowed the functions of the Con- 
stitutional Convention, in some cases, to be exercised by its 
revolutionary prototype, — the Revolutionary Conventions as- 
suming the duty, with others, of framing their first constitutions. 

But, if the necessity of keeping the two institutions distinct 
was not at first generally apparent, it required but little experi- 
ence of actual administration to convince men as intelligent and 
jealous of their liberties as our fathers, that if, to the function 
of suggesting, the Constitutional Conventions, becoming so 
common amongst them, should join that of establishing, their 
Constitutions of government, and not only so, but of framing 
and administering the ordinary laws of their respective States, as 
being but the less involved in the greater power, there would be 
practically no security at all for their liberties. Accordingly, we 
find that the cases in which the incompatible functions indi- 
cated were actually accumulated in the same hands were con- 
fined to the first years of the war, when the idea had not been 
dissipated that a satisfactory peace with England would soon 
make unnecessary the continuance of the State organizations, 
thus far regarded as temporary establishments for the govern- 
ment of the colonies, whilst the contest with England should 
continue. 

§ 15. We are to conceive of the Constitutional Convention, 
then, as an adaptation to constitutional uses of an institution 
originally revolutionary ; that is, whose methods and principles 
of action, as well as whose purposes, were alien and hostile to 
established laws and Constitutions. And this is the real occa- 



, MISCONCEPTIONS EEGARDING CONVENTIONS. 15 

sion of most of the misconceptions prevalent as to its true char- 
acter. Thus, the notion has been common among even the 
well-informed, that the Constitutional Convention is above the 
law, the Constitution, and the government, all of which it may, 
therefore, it is conceived, respect and obey or not at its discre- 
tion ; that it is possessed, in short, of the powers of its revolu- 
tionary namesake. 

The origin of this misconception is ignorance of the simple 
facts of our constitutional history above detailed, and of the 
principles of our political system. To determine the rightful 
powers of the institution as adapted to our constitutional uses, 
men point to the English Conventions of 1660 and 1689, to that 
of the latter year in Massachusetts, to those by which our first 
Revolution was, in the various American colonies, begun and 
consummated. Those bodies, which, unquestionably, in many 
cases, framed Constitutions, were known to be possessed of other 
and extraordinary powers. They were called by high-sounding 
titles : " The Estates of the Realm ; " " The People in their Pri- 
mary and Sovereign Capacity ; " — phrases, in whose indefinite- 
ness could be discovered, or concealed, all possible attributions 
of power. The error has received additional currency from the 
extraordinary proceedings of the Conventions held in France, 
particularly that which piloted her upon the breakers in the 
closing years of the last century. Was not the Convention of 
our first ally, it is asked, which uprooted the monarchy and 
laid the foundations of the French Republic, an institution bor- 
rowed from us, — an institution, therefore, which has not here 
developed the extraordinary powers, exhibited by it in France, 
only because our occasions have never called them forth ? The 
upshot of this reasoning is, the establishment of the axiom, 
that a Constitutional Convention wields all the powers, which, 
by the law of nature or of nations, are conceded to exist in 
the sovereign for which it acts — a degree of omnipotence to 
which, in a government of law, there can be found no parallel, 
and which is inconsistent with the fundamental principles of 
American liberty. 

§ 16. The Constitutional Convention, then, I consider as an 
exotic, domesticated in our political system, but in the process 
so transformed as to have become an essentially different insti- 
tution from what it was as a Revolutionary Convention. In 



16 FUNDAMENTAL CONCEPTIONS. 

the following pages an attempt will be made to vindicate the 
accuracy of that view by inquiring into the institution in all 
its relations, as well to the people as to the government in its 
various departments, connecting with the theoretical considera- 
tions necessarily involved in the discussion, historical sketches 
of such Conventions as have thus far been held in the United 
States. 

§ 17. Before proceeding to this inquiry, it will be useful to 
develop, with such completeness as space will allow, two funda- 
mental conceptions, to which reference will be constantly made 
m the following pages, — that of Sovereignty, or of a sovereign 
Body ; and that of a Constitution, or Law fundamental, as dis- 
tinguished from an ordinary municipal law. 

Without an accurate comprehension of these two subjects, it 
will be impossible to arrive at the truth in relation to the institu- 
tion we are considering, since the first, being the source and 
foundation of all just authority in the state,i determines its 
powers ; and the second, being the object, to create which or to 
aid in creating which that institution is employed, ascertains the 
field of its operations. To these conceptions, therefore, will be 
devoted the two following chapters. 

1 The word state is used in this treatise, first, generally, to denote any organ- 
ized political community ; that is, synonymously with commonwealth ; and, 
secondly, in a limited sense, to designate a member of the American Union. 
When employed in the former sense, it begins with a small letter, and when in 
the latter, with a capital. 



CHAPTER 11. 

1 
§ 18. By the term sovereign is meant the person or body of 
persons in a state, to whom there is, politically, no superior.^ 
Sovereignty is the state or condition of being a sovereign — the 
possession of sovereign powers.^ 

§ 19. The marks by which the possession of sovereignty may 
be determined, in particular cases, have been thus described by 
Mr. John Austin, one of the most eminent authorities upon the 
philosophy of jurisprudence: — 

" The superiority," says he, " which is styled sovereignty, and 
the independent political society which sovereignty implies, is 
distinguished from other superiority, and from other society, by 
the following marks or characters : — 

1 The term sovereign is derived from a low-Latin word, supranus, formed from 
supra, by the followino; transformations : soprano, sovrano, souverain, sovereign. 
Ducange, in verb. Milton spells the word sovran. Richardson's Dictionary, in 
verb. 

The meaning of the term sovereignty, then, is simply superiority ; but it is, 
humanly speaking, an absolute superiority. Rutherforth, in his Institutes of 
Natural Law, contends, not without reason, that when we speak of relative 
superiority, we use the word supremacy. He says : — " Whenever we speak of 
sovereign power or of supreme power, we are led into some mistakes by using 
these words indiscriminately. When we call any power supreme, the expression 
seems to be relative to some other subordinate powers ; to call any power the 
highest of all is not very intelligible, if there are no other powers below it. 
Sovereign power is also a relative term ; but then it has not a necessary relation 
to subordinate powers. To call any power by the name of sovereign power, 
does not necessarily imply that there ai-e any other p*bwers in subordination to 
it. Whatever power is independent, so as not to be subject to any other power, 
though it has in the mean time no other power subject to Itself, may with pro- 
priety enough be called by this name. In short, that power may well be called 
sovereign to which none is superior ; whereas none can be called supreme, 
unless there are others inferior to it." Book 11. oh. iv. pp. 75, 76. 

2 Dr. Lieber, in his Political Ethics, defines sovereignty fi-om the point of 
view of its moral limitations, thus : " The necessary existence of the state, and 
that right and power which necessarily flow from it, is sovereignty." 



18 MARKS OF SOVEREIGNTY. 

" 1. The bulk of the given society are in a habit of obedience 
or submission to a determinate and common superior, let that 
common superior be a certain individual person, or a certain 
body or aggregate of individual persons. 

" 2. That certain individual, or that certain body of individ- 
uals, is not in a habit of obedience to a determinate human 
superior 

" Or, the notions of sovereignty and independent political soci- 
ety may be expressed concisely thus : If a determinate human 
superior, not in a habit of obedience to a like superior, receive 
habitual obedience from the bulk of a given society, that deter- 
minate superior is sovereign in that society, and the society (in- 
cluding the superior) is a society political and independent." ^ 

§ 20. It is impossible to describe sovereignty with greater 
completeness or felicity, but I shall venture to add to the marks 
given by Mr. Austin two not unrelated to them, expressed in 
terms more familiar to the jurisprudence of the United States. 
They are these : — 

1. Whenever, within the same territorial limits, there exist two 
political organizations, or tv^JO political entities, so related to 
each other that one may determine its own powers and juris- 
diction, and, in so doing, limit, enlarge, or abolish those of the 
other, being at the same time itself, not only subject to no 
reciprocal modification, but independent of all the world, the 
former is a sovereign organization or entity, and the latter is 
not. 

2. Whatever, historically considered, may have been the orig- 
inal relations of two political bodies at present distinguished 
from each other by the mark indicated, the powers wielded by 
the inferior must be conceived as delegated by the superior, since 
at no moment would its possession of them continue without 
the consent of that superior. 

This follows from the definition of sovereignty, and will aid 
us further on, when we come to consider the question of sover- 
eignty in the United States. 

§ 21. With the abstract question of the ground upon which 
the right of sovereignty rests, I shall not concern myself.^ 

1 Austin, The Province of Jurisprudence Determined, Vol. I. p. 1 70. 

2 The principal theories as to the gi'ound of sovereignty, and, consequently, 
as to the ultimate foundation of civil government, are, that it rests, first, upon 



WHERE SOVEREIGNTY RESIDES. 19 

A question of less difficulty, and, for my purpose, of greater 
practical importance, is, where — theoretically considered, and 
without reference to particular states — does sovereignty reside, 
and what are its attributes? 

To the first branch of the question, the answer is: sover- 1 
eignty resides in the society or body politic; in the corporate unit 
resulting from the organization of many into one, and not in / 

Divine appointment ; secondly, upon compact ; and, thirdly, upon the development 
of natural forces, according to natural laics. 

In reference to these theories, I shall only observe, that, rightly considered, 
they and the numerous modifications of them, which figure in the books, seem 
to me to be expressions of the same truth, seen from ditTerent points of view, 
and naturally seen with different degrees of clearness and completeness. Thus, 
if the phenomena of civil society be viewed with particular reference to Divine 
Providence, whose interposition, whether special or general, through the oper- 
ation of natural laws, is unquestionably a principal, if not the exclusiTc compo- 
nent of the forces whose resultant is the state, the ground of those phenomena 
might, not without apparent reason, be regarded as the Divine will. Let the 
attention, on the other hand, be directed chiefly to the fact, apparent in any 
political society during even the stormiest periods of its history, that the bulk, 
the majority in weight and influence, if not in numbers, of its members, ac(}ui- 
esce in, (see post, § 65,) perhaps have formally assented to, the forms of its 
social and political organization, and it would seem proper to refer those forms 
to a compact between the individuals composing it. But if, beside the Divine 
will, and beside the apparent consent or agreement of those who constitute the 
bulk of a society, account be taken, as it certainly ought, of the will of men, 
often perverse, always unstable, and "which, if a will at all, whatever theologians 
may say, is not determined by the Divine will, but is independent of it ; the 
will of men, too, not comprised in that bulk of the society which seems to organ- 
ize political institutions by compact, but constituting a protesting or rebellious 
minority, by whose hostile pressure or assault those institutions are modified, 
though not determined ; and if, further, account be taken of the natural or his- 
torical conditions of soil, climate, laws, degree of civilization, habits, passions, 
aversions, religion, and race, all of which are constantly appearing elements of 
the social problem in every state, whatever its rank in the scale of civilization ; 
it would seem reasonable to ground sovereignty and civil government upon the 
development of natural forces, according to natural laws. By this view, the 
problems of political philosophy are problems of vital dynamics ; the state is 
an object of natural history, like a coral reef, a swarm of bees, or a family of 
beavers ; a composite animal, a union of many persons into one, but a vital 
union, not a mere aggregation by accident or choice of individuals by nature 
independent of each other ; a union dating from the creation of the parts, and, 
therefore, under some form and conditions, a necessary union. The way in 
■which such a composite being achieves what measure it does of social life and 
development, under the combined operation of all the social forces indicated, 
together with the modes of operation of these forces, are the constitution and 

laws of that beinet. 

V 



20 ATTRIBUTES OF SOVEREIGNTY. 

the individuals constituting such unit, nor in any number of 
them as such, nor even in all of them, except as organized into 
a body politic and acting as such. Thus, Justice Iredell, in a 
case in the Supreme Court of the United States, decided in 
1795, after describing the formation of our governments, said : 
" In such governments, the sovereignty resides in the great body 
of the people, but it resides in them not as so many distinct 
individuals, but in their political capacity only." ^ 

§ 22. As to the second branch of the question, relating to the 
attributes of sovereignty, little need be said. The attributes of 
sovereignty, mentioning such only as tend to throw light upon 
the problems discussed in this work, are as follows : — 

1. A true sovereign can never voluntarily abdicate or divest 
itself of the sovereignty. A sovereign political society may 
cease longer to exist as such, — may become merged in another 
society, and so lose its sovereignty ; but so long as it remains 
an independent political society, it must possess and exercise 
sovereign powers. 

2. Sovereignty is indivisible. To establish this, we need but 
to try to conceive of the contrary. If the sovereignty of a state 
were divided among its citizens, whether a few or all of them, 
the recipients of it would each be possessed of equal sovereign 
power, and, there being no common superior, government would 
be impossible.^ 

3. Sovereignty is indefeasible ; that is, it is incapable, by any 
juggle based upon legal analogies, of being defeated or abro- 
gated. As expressed by James Wilson, in the Convention of 
Pennsylvania to adopt the Federal Constitution, " sovereignty is 
and remains in the people." 

4. Sovereignty is inalienable ; that is, " society never can dele- 
gate or pledge away sovereignty." ^ " Being inherent, naturally 

1 Penhallow v. Doane's Admrs., 3 Dallas' E. 54. See, also, to the same point, 
the testimony of Judge Tucker, in Tuck. Blackst. Com., Vol. I. Appendix, p. 9, 
ed. 1803. 

So, also, Dr. Brownson : " The political sovereignty, under the law of nature, 
attaches to the people, not individually, but collectively, as civil and political 
society. It is vested in the political community or nation, not in an individual 
or family, or a class." — The Amer. Republic, p. 135. 

2 For a statement of the absurd consequences of a divisible sovereignty, see 
Lieber's Political Ethics, Vol. I. p. 252. See also Brownson's American Re' 
public, Y>Y>- 192-196. 

3 Lieber's Polit. Ethics, Vol. I. p. 251. 



MODES OF MANIFESTATION OF SOVEREIGNTY. 21 

and necessarily, in the state, it cannot pass from it so long as 
the latter exists." ^ 

By this is not meant that the exercise of sovereignty may not 
be delegated. Such a delegation is of the essence of govern- 
ment. But to delegate to another the exercise of a power 
within prescribed limits, or for a determinate time or purpose, is 
no alienation of it, but supposes it to be still virtually in the 
original hand. 

5. Sovereignty, as we have said, is indivisible, but the sover- 
eign body itself is not. The latter may be divided into several 
sovereigns, each distinct and independent. To be convinced of 
this, we have but to imagine a body politic split by overwhelm- 
ing force into several parts. The fragments survive the shock, 
become new independent societies, and run separate careers. 
Each is a sovereign society. An instance of such a disruption 
occurred in the British empire at the time of the American 
Revolution. Previously to our Declaration of Independence, 
England was, as she has ever since continued to be, a sovereign 
society, but of that England the colonies formed a part. When 
the connection was severed, the " United Colonies," by which 
the separation was effected, became a new political society, in- 
dependent of the crown, and, as such, invested with all sovereign 
rights. 

6. Finally, two or more sovereign bodies may by force or by 
consent become united and form a new political society. In 
such a case, sovereignty forsakes the composing units and be- 
comes inherent in the resulting aggregate. To have that effect, 
however, it is doubtless necessary that the union should not be a 
mere juxtaposition, but a fusion, of the constituent elements. 

§ 23. The characteristic marks and attributes of sovereignty 
being comprehended, it is important to ascertain the various 
modes of its manifestation. 

Soverejgnty manifests itself in two ways : first, indirectly^] 
through individuals, acting as the agents or representatives of 
the sovereign, and constituting the civil government ; and, sec- 
ondly, directly, by organic movements of the political society 
itself, without the ministry of agents ; the movements referred 
to exhibiting themselves either in those social agitations, of 
which the resultant is known as public opinion^ that vis a tergo 
1 Lieber's PoliL Elhics, Vol. I. p. 250. 



22 DIRECT MANIFESTATION OP SOVEREIGNTY. 

in all free commonwealths, by which the machinery of govern- 
ment is put and kept in orderly motion ; or in manifestations of 
original jjower, by which political or social changes are achieved 
irregularly, under the operation of forces wielded by the body 
politic itself immediately.^ 

Of the two direct manifestations of sovereignty indicated, 
public opinion is by far the most important, the most constant, 
and the least dangerous. By it is meant, not the opinion of this 
or that man or class, but the opinion of the body politic, which 
is the resultant of the concurring, divergent, and clashing opin- 
ions of the whole body of the citizens. The object upon which 
this important social force expends itself is either the govern- 
ment, considered as the servant of the sovereign, or the society 
employing it, which is the sovereign itself. But the peculiarity 
of it is, that while constitutions and laws make no allusion to 
public opinion as a legitimate political force, all administrative 
agencies bow before it as though it were true, as is often 
affirmed, that " the voice of the people is the voice of God." 
f The other direct manifestation of sovereignty, the irregular 
exhibition of power, is witnessed when society, by a general 
and irresistible impulse, does an act because it will do it, taking 
less account of its lawfulness than of its necessity or desirable- 
ness, though often, for example's sake, covering its contempt of 
legal forms with a thin varnish of fiction or sophistry. In plain 
language, such an exhibition of original power is in the nature 
of a coup d'etat, an act of force originating in lawlessness, but, 
because done by a body whose power is overwhelming, an act 
L^^jwhich it were folly to impeach. A striking instance of this sort 
of original manifestation of sovereignty occurred in England in 
consummating the Reform movement in 1832. The English 
people had been excited to the verge of revolution by the agi- 
tators for reform in the electoral system. A reform bill, passed 
by the Commons, had been twice thrown out by the Lords. 
Neither house giving way, and an outbreak of violence seeming 
inevitable, the prime minister. Lord Grey, took measures forcibly 
to carry the bill, when the Lords yielded and allowed it to pass. 
Here, the organic pressure of the nation, culminating in the 
ministerial project of deluging the House of Lords with new 
peers, who would vote for the Reform Bill, consummated a 
1 Lieber's Polit. Ethics, Vol. I. p. 256. 



INDIRECT MANIFESTATION OP SOVEREIGNTY. 23 

change in the constitution of Parliament upon which the hearts 
of the people had become fixed. It was a revolution effected 
by the direct action of the body politic, and not by the vulgar 
usurpation of a prince or military leader, so common in the 
history of political revolutions. 

§ 24. With the indirect manifestations of sovereignty, through 
the intermediation of agents, all are familiar. Save in the ex- 
ceptional modes just described, the sovereign exercises the right 
of sovereignty in no other way than by procuration. It cannot 
meet to deliberate, as it must do to engage directly in legislation. 
When laws are established, it cannot in person expound or 
apply them ; nor, when expounded or applied, can it superintend 
their execution. It is a society sovereign as a totality, but, as 
such, so unwieldy, that a direct exercise of its functions, save in 
miniature states, like the ancient democracies, or the city com- 
monwealths of the Middle Ages, is wholly impracticable. For 
this reason it organizes systems of agencies, to which it dele- 
gates the right to exercise such powers as it chooses to grant. 
The agents holding these delegated powers, collectively consid- 
ered, constitute the civil government of the society. 

In most modern governments, including our own, there are 
four distinct branches or departments, to which are confided the 
powers delegated by the sovereign. Of these, the first is the 
Electors, whose function is that of choosing out of their own 
number the functionaries employed in the other departments, to 
which in the United States is added that of enacting the funda- 
mental laws. The electoral body is the most numerous in the 
state, charged with an official function. It comprises the suf- 
frage-holders, or voters, or, in a qualified sense, the i^eople, and 
differs from the other three departments in that it constitutes a 
body which never assembles, but acts in segments of such con- 
venient size as not to render conference and cooperation imprac- 
ticable. 

The other three departments are familiar under the names of 
legislative, executive, and judicial departments, charged with the 
duties indicated by those terms respectively. 

To these four systems of agencies, common to the best gov- 
ernments of both Europe and America, those of the United 
States have added a fifth, unknown abroad, — the Constitutional 
Convention, — whose functions, as we have already seen, are such 



24 PRACTICAL COROLLAEIES. 

as to rank it as a legislature, but a special legislature, whose 
duty it is to participate in the framing or amending of Consti- 
tutions. 

Of these five departments, the last four represent the sover- 
eign only mediately, — those who fill them being either elected, 
in accordance with legal provisions, by the first, the electors, or 
appointed by some coordinate department. The electors, on the 
other hand, represent the sovereign immediately, being desig- 
nated by the latter in the original act constituting the govern- 
ment, the Constitution. 

It is evident that neither of the five systems of agencies 
named is possessed of sovereignty, though by delegation, me- 
diate or immediate, they all exercise more or less of its powers. 
There is observable amongst them, moreover, a gradation : first, 
with respect to the extent to which they are vested with sover- 
eign powers ; and, secondly, with respect to the nearness of their 
relations to their head, the sovereign. Thus, in both particulars, 
the electoral body ranks high, since it stands, as we have seen, 
nearest to the sovereign, and its functions, though limited, are 
extremely important. The two legislative departments are 
vested with powers more extensive than any others : the con- 
vention, with power to frame the fundamental laws, to be passed 
upon by the electors ; and the legislature. With the broad pow- 
ers of remedial and punitory legislation. After these follow the 
executive and judiciary, charged severally with functions more 
limited, though of vast importance to the state. 

On the whole, if required to marshal the five systems of agen- 
cies according to their relative rank, to be determined by the 
degree in which, in the various respects indicated, they represent 
the sovereign power, I should place them thus: l,the Electors ; 
2, the Legislature ; 3, the Convention ; 4, the Executive ; and 
5, the Judiciary. 
r § 25. Before proceeding further with the discussion of sover- 
' eignty, I desire to draw from what has preceded one or two cor- 
ollaries having a direct practical bearing on the main subject of 
this treatise, the Constitutional Convention, its powers and func- 
tions. These corollaries are deducible from the principles enun- 
ciated above, by the aid of what I may call the doctrine of 
constitutional presumptions, which may be explained as follows : 

The sovereign, having once established agencies for the gov- 



CONSTITUTIONAL PRESUMPTIONS. 25 

ernment of the state, retires from view, and, except by the pres- 
sure of opinion, or by power from time to time irregularly 
applied, ceases to interfere in the conduct of affairs; in this 
respect, dealing with the system established by it as the Deity 
dealt with the universe, when, having created it, He left it, as 
it were, " wound up," to run according to the laws He had or- 
dained, and interfered with it only by affecting the consciences 
of men, or occasionally, perhaps, by special providences, when 
some crisis demanded it. In the act of retiring thus the sover- 
eign virtually says : " These are my agents. What this pro- 
claims, in the forms prescribed, you shall consider as law. To 
this, I have given power to expound and apply the law, and to 
this, power to carry the law into effect, using, if needful, the en- 
tire public force. When the system I have established needs 
reparation or renewal, let this body propose, and this other ratify, 
the needed changes. Here is the commission by whose letter or 
spirit all are to be guided — the Constitution." 

Now, respecting a system thus established, what presump- 
tions arise as against any other system or institution springing 
up by its side, unknown or hostile to it ? 

They are two : — 

1. That, at any given time, the sovereign body is content with 
the establishment now existing, created by its own act — a pre- 
sumption arising from the very fact that that establishment 
exists. 

2. That if the sovereign body desired a change in the struct- 
ure or functions of the government founded by itself, it would 
prefer to indicate that desire through its own agents, and not 
through strangers or persons standing to it in no official rela- 
tion ; and that it would choose to effect such change by some 
authorized organic action of the system itself, whereby harmony 
between governors and governed would be assured, rather than by 
irregular methods, as by exhibitions of original power by itself, 
or by usurpations on the part of individuals or public bodies, 
savoring of revolution, and rendering such harmony impossible. 

These, I apprehend, are the presumptions warranted by the 
relations indicated. Applying these as a test to the case of polit- 
ical action, the following corollaries are justified : — 

1. That all interference with the frame or working of a gov- 
ernment established, by persons ab extra, that is, not commis- 

/ 



26 WHERE SOVEREIGNTY RESIDES IN FOREIGN STATES. 

sioned for that purpose by the government itself, is usurpation, 
though participated in by every citizen in the Commonwealth, 
and is therefore illegal and revolutionary.^ 

2. That whenever a public body, belonging to the govern- 
mental system established by the sovereign, assumes, without an 
express warrant in the Constitution, laws, or approved customs 
of the country, to meddle with that Constitution, with the laws, 
or with the public administration, it is guilty of usurpation, and 
its acts are null and void. 

§ 26. In the general discussion of sovereignty, in the preced- 
ing sections, that power has been supposed to reside in the body 
politic, comprising the whole population of the Commonwealth, 
without distinction of age or sex. This presents the theoretical 
view of the question. It is important for my purpose to go be- 
yond this, and ascertain how far the theoretical view corresponds 
with historical or existing facts, and if discrepancies should ap- 
pear, to explain their causes and character. 

The question may be considered with reference, — I., to For- 
eign States ; and II., to the United States of America. 

I. In most civilized states abroad, there is much confu- 
sion of ideas in reference to the locus of the sovereign power. 
In some, it is placed in the monarch or chief executive officer, 
who, in fact, exercises wide, and often unlimited, powers. In 
others, it is located in a close corporation of nobles, wielding 
similar powers. In a third class, comprising governments of a 
mixed character, with a monarch, a privileged nobility, and a 
commonalty representing the nation at large, the latter is prac- 
tically recognized as the true sovereign. But while in this case 
there is a real conformity to principles, the fiction is entertained 
that the monarch is the fountain of all power, the sovereign in 
fact, as in name. In the other two varieties, the existence of 
the nation as a power distinct from the court, is ignored in law, 
and appears as a fact only in those terrible moments when the 
giant, overthrown and trodden under foot of his servants, heaves 
beneath them, crumbling to pieces the structures founded upon 
the theory of his permanent subjection. The course of history 
demonstrates that the power of the nation is always in the 
long run superior to that of any fraction of it, and needs but to 

1 For an exposition of the import of the terms revolution and revolutionary, 
as used in this treatise, see ch. iv. §§ 109-113, , 



WHERE SOVEREIGNTY RESIDES IN THE UNITED STATES. 27 

be called out. What Sully has said of the populace, is true of 
nations : " They never rebel from a desire of attacking, but 
from an impatience of suffering." When the limit of endur- 
ance has been reached, governments and dynasties are in their 
presence but as flax before the fire. If the body politic, like 
Gulliver among the Lilliputians, is bound by the pigmy tribe 
intrusted with its protection, it is not because it has lost either 
its power or its right, nor because in its betrayers there exists 
that irresistible potency which is everywhere recognized as the 
basis of dominion. The despotism practised by them is a per- 
missive one, founded on the good nature, the inertness or the 
temporary distraction of its victims. Let the step too far be 
taken, and it springs up sovereign by a title as indisputable as a 
decree of fate — that of superior force. 

In the states in question, then, the real sovereign is the body 
politic, as theory requires. But in most of them, the true 
sovereign has allowed itself to be stripped of its robes of state 
by usurping servants. Its very existence as a fountain of au- 
thority is denied, the relations of superior and inferior being, 
practically, through the supineness of the former, reversed. 

§ 27. II. I come now to the most important question of all, 
namely, — 

Where lies the sovereignty in the United States, and how does 
it exist in the person or body ascertained to be the depositary 
thereof? 

1. The first branch of this question may be considered from 
two points of view, in the main independent of each other, 
namely : (a), from that of the elementary principles of sover- 
eignty, developed in the foregoing sections ; and (6), from that 
of historical facts and principles evolved in the life of this and 
other peoples, and having a tendency to determine the question 
of American nationality. 

A short space will be devoted to this question from each of 
these points of view. 

[a). Distinguishing the territory and people of the United 
States from the residue of the territory and people of the earth, 
and considering the same as forming an independent society, 
it is evident that the right of sovereignty resides somewhere 
within it in as ample a measure as in any other political so- 
ciety. 



28 MARKS OR TESTS OF SOVEREIGNTY APPLIED. 

The difficulty is, in the jumble of National and State organi- 
zations, to locate it. 

Recurring now to the definition and marks or tests of sover- 
eignty laid down in this chapter, let us see if it be possible to 
find, with their help, where that power probably resides in the 
United States. 

A sovereign person or body, as we have seen, is one to whom 
bhere is, politically, no superior. 

Contrasting the State governments, as political organizations, 
with the Federal government as a political organization, it 
is evident that the former cannot be said to be sovereign, or 
by consequence to be possessed of sovereignty, either collectively 
or individually, since if their equality with the Federal govern- 
ment were conceded, they certainly are not its superior. But 
their equality cannot be conceded. By the Constitution of the 
United States, that instrument and the laws of the United 
States, made in pursuance thereof, are declared to be the su- 
preme law of the land, and the judges in every State are to be 
bound thereby, and all State officials, legislative, executive, and 
judicial, are to be bound by oath to support that Constitution. 
If, therefore, it might seem from the fact that a separate and in- 
dependent jurisdiction is apportioned to the several States on 
the one hand, and to the general government on the other, that 
they are equal to each other, these clauses of the Constitution 
show that such is not the case, but that, in all that wide field, 
where the powers of both are concurrent, or where it is doubtful 
with which the power is lodged, and collisions occur or impend, 
the latter is to be taken as supreme. If either of the two, there- 
fore, the States or the general government, is sovereign, it is not 
the former but the latter. 

But is it true, that sovereignty is lodged with the general gov- 
ernment? 

Applying the same principles, and, in their light, contrasting 
the federal government with the people of the United States, — 
the only other imaginable depositary of sovereign powers, — it is 
clear that those powers must belong to the latter and not to the 
former, for two i masons. 1. The people of the United States 
"ordained and established " the Federal government, — created 
it. As between creator and creature, the former must be the po- 
litical superior of the latter. 2. Governments are always sec- 



MAEKS OR TESTS OF SOVEREIGNTY APPLIED. 29 

ondary and vicarious. They are agencies, and to suppose them 
possessed of sovereign powers, is to make those powers alienable 
beyond redemption, which is opposed to the true conception of 
sovereignty. It is rather the people of the United States, who, 
having created, may be presumed competent to alter or abolish, 
their government, that is the true sovereign. 

So much for the inferences to be drawn from the definition of 
sovereignty. 

§ 28. Let us now subject the three political bodies or entities 
specified to a rigid scrutiny, to see if in either of them there can 
be discovered the distinguishing marks of sovereignty above 
described. 

" If a determinate human superior," says Mr. Austin,^ " not 
in a habit of obedience to a like superior, receive habitual obedi- 
ence from the bulk of a given society, that determinate superior 
is sovereign in that society." 

What political body, institution, or entity is there, in the 
United States, not in a habit of obedience to any other body, 
etc., which receives habitual obedience from the bulk of the 
Union, but the people of the United States ? It certainly is not 
the States, for they have habitually obeyed, each and all of them, 
the people of the United States ever since the latter entered into 
a union as one people.^ The people of the United States, in 
1789, threw the existing Constitutions of the several States into 
hotchpotch, and repartitioned amongst those bodies the powers 
they were thenceforth to exercise, giving a portion thereof to the 
States, a portion to the general government, and reserving the 
residue to themselves. And the States have habitually conformed 
to the edict which thus curtailed and ascertained their powers. 

Not only this : the States, since the foundation of the Union, 
have not received "habitual obedience from the bulk^^ of the 
Union ; certainly not, severally considered ; for while the respect- 
ive States have received habitual obedience, each from the bulk 
of its own people, they have not received it severally from the 
peoples of the other States ; that is, the State of Virginia has 

1 See ante, § 19. 

2 The word habitually is inserted by Mr. Austin in this test of sovereignty to 
cover the very case lately presented by the United States ; that is, the case in 
which a part of the society should be for a time in revolt against the sovereign 
whole. It is the general habit of all the parts to obey ; that is, to determine 
where the sovereignty resides. 



30 MARKS OR TESTS OF SOVEREIGNTY APPLIED. 

received habitual obedience from the bulk of the Virginians, but 
not from that of the people of the whole Union. 

If it be urged that the States collectively have received obedi- 
ence from the bulk of the Union, and therefore fulfil the condi- 
tions necessary to make them sovereign organizations, the reply 
is, that the term " States " is ambiguous, meaning either the citi- 
zens of the United States, comprised within the State lines re- 
spectively, or the governments established by them within the 
same lines. In the latter sense, it is not true that the States, 
considered either severally or collectively, have ever received obe- 
dience from the bulk of the society forming the Union. The 
State governments have no extra-territorial operation, and, of 
course, receive no extra-territorial obedience. In the former 
sense, by the " States," collectively considered, would be meant 
the entire people of the United States, and the hypothesis in 
question would attribute sovereignty to that people, acting in 
groups by States — a view of the subject whose correctness I 
shall have occasion to examine when I come to consider how 
sovereignty exists in the people of the United States. For the 
present, I shall only observe, that if the case last supposed were 
conceded to express the real fact, it would not make the States, 
as such, sovereign, either individually or collectively, but the 
people of the United States, acting in a particular way or under 
particular conditions, as in groups, discriminated from each other 
by State boundaries. 

§ 29. Tested by the concluding mark above described,^ the 
result is the same. 

Whenever, it was said, there exist, within the same territo- 
rial limits, two political organizations so related to each other 
that one may determine its own powers and, in so doing, limit, 
enlarge, or abolish those of the other, being itself at the same 
time not only subject to no reciprocal modification, but inde- 
pendent of all the world, the former is a sovereign organization, 
and the latter is not. 

Seeking amongst the political entities of the United States 
one which answers to these conditions, it is plain that no one 
of them does so, unless it be the people of the United States. 
Neither the government of the United States, nor the people nor 
government of the several States, answers either of those condi- 
tions, being each of them subject to the modifying influence of a 

1 Ante, § 20. 



DEFINITION OF A NATION. 31 

power underlying them all, from which they received either their 
origin or those structural changes by which their present form 
and scope were determined. That underlying power is the 
people of the United States.^ To attribute sovereignty to the 
former, therefore, would be an abuse of terms. 

On the other hand, the conditions of sovereignty required are 
all fulfilled by the people of the United States. Neither their 
powers nor their modes of administration are determined by 
the States, severally considered, whether as peoples or govern- 
ments, nor by the government of the Union, but by themselves 
alone in some mode selected by themselves. It rests with them, 
moreover, to remodel or to abolish the governments both of the 
States and of the Union, and, if they choose, to wipe out the 
States themselves as political organizations. Under what con- 
ditions this may be done, will be the subject of future consid- 
eration. For my present purpose, it is enough that the thing 
may be done under some conditions. This fact alone indicates 
that the people of the United States are the only sovereign. 
If it turn out, as it will, that the conditions prescribed under 
which alone they can do this, are prescribed by themselves, and, 
therefore, are enforcible only by moral sanctions, that they are 
the sovereign will become perfectly certain. 

§ 30. {b). I pass now to consider briefly a few historical facts 
and principles tending to determine the mooted question of 
American nationality, with a view to furnishing other and per- 
haps more solid grounds of inference as to the locus of sover- 
eignty in the United States. For, if the latter, as a political 
society, constitute a Nation, there is an end of all question, — 
the sovereignty dwells in the people of the United States, con- 
sidered as a body politic and corporate.^ 

Do the United States, then, constitute a Nation ? 

Before attempting to answer this question, let us determine 
what it is, and what it is not, to be a nation. 

A nation is defined to be " a race of men ; a people born ^ in 

1 For a more complete exhibition of this relation of the people of the United 
States to the people and government of the States respectively, see post, §§ 58 
and 62. 

2 " Now, an independent nation is, ex vi termini, a sovereign." — Grimke, 
arguendo, 2 Hill's S. C. Rep. 58. Vattel, bk. 1, ch. 1, sec. 12. 

3 '^ Nascoj;" " natus," '■'■nalio," — to he born. 



32 DEFINITION OF A NATION. 

the same country, and living under the same government; a 
people distinct from others." ^ 

In this definition is evidently involved the idea cf descent 
from a common stock. This, though substantially correct, 
would exclude those cases in which different races are mingled 
in a lasting political union; as when, to a central stock, there 
are accreted foreign elements by adoption. 

A nation, then, in its largest sense, is analogous to, but not 
identical with, the family. It is a distinct, independent people ; 
consisting of men of one blood, with such accretions from alien 
races as, resulting from common affinities, are destined to be 
permanent ; occupying a determinate territory, within whose 
limits it maintains its own forms of social organization ; possess- 
ing the same language, laws, religion, and civilization, the same 
political principles and traditions, the same general interests, 
attachments, and antipathies ; in short, a people bound together, 
by common attractions and repulsions, into a living organism, 
possessed of a common pulse, a common intelligence and aspira- 
tions, and destined apparently to have a common history and a 
common fate. 

So far of the affirmative definition of a nation. 

§ 31. The negative may be given in equally few words. 

1. To be a nation is not to be, literally, of one blood or race, 
but, as we have seen, to be mainly of one blood or race, but 
with permanent accretions from other races, undergoing, con- 
sciously or otherwise, the process of assimilation to the prevail- 
ing type. 

2. To be a nation, it is not necessary that all its constituent 
members should be continuously, and under all circumstances, 
willing or even acquiescent participators in the common national 
life. Civil wars and dissensions, though facts tending to dis- 
prove the existence of nationality in a particular case, are far 
from decisive of that question, being as inconclusive evidence 
of its non-existence as a strong and enduring friendship between 
two contiguous nations would be that they constituted but a 
single nation. Wars arise as often, perhaps, between factions 
of the same blood and race, impelled by political animosity or 
ambition, but confessedly forming a single nation, as between 
parties of diverse descent, scrambling for ascendency in a con- 

1 Worcester's Dictionary, in verb. 



EXAMPLES OP nature's METHOD. 33 

federation, possessing no distinctive national features. If civil 
commotions, however extensive, were proof that a people did 
not constitute a nation, what nation has ever existed ? 

§ 32. Proceeding, now, in the light of these definitions, it may- 
be inferred that the United States constitute a nation, — 

1. From the fact that, in their development from sparse set- 
tlements into a compact and powerful state — e pluribus unum — 
there is observable a perfect conformity to the method of nature in 
the genesis of nations. 

Let us see what that method is : — 

Nations do not spring into life, in full bloom of population, 
wealth, and culture. They are developed from rude beginnings, 
by a process of assimilation and growth analogous to that in 
organic life. In their origin, they commonly form a chaos of 
heterogeneous materials. These, Nature subjects to her kindly 
influences of warmth and pressure, till they assume a character 
homogeneous, and, because formed under new conditions, dis- 
tinctive. 

There are two modes in which the diversified materials that 
ultimately fuse into nations are brought into the contact neces- 
sary to a vital union. They may be superimposed, like geolog- 
ical strata ; as, where a race comes in by conquest over another, 
whose polity it subverts, and which it keeps beneath itself as 
subjects or vassals ; or those materials, being dropped apart, like 
chance seeds, in a wide territory, may take root and spread, each 
from its little centre, and come in turn to press upon each other 
laterally. 

Whichever of these modes obtains, the constant phenomena 
are at first estrangements, swelling into wars by reason of collis- 
ions of interests, or differences of character and habit. Time, 
however, kneads the colliding elements gradually into consis- 
tency. From being like, they soon come to like, each other. 
Perhaps the process by which their fusion is completed is, that 
they suffer some common affliction, or wage together some great 
war, in which every drop of blood cements them into a firmer 
union. 

§ 33. Of the first mode, most European nations furnish exam- 
ples. From the earliest historical dates have been witnessed in 
them wave after wave of conquering races rolling from the east 
and north, and dashing one upon the other as they went west- 
8 



34 METHOD EXHIBITED BY THE UNITED STATES. 

ward and southward, but never returning. Out of these diverse 
and hostile alluviums Nature has built the great races that we 
have seen in modern times in Europe. 

Of the other mode, early Rome was an example. In the first 
years of her history, Italy was filled with petty states, among 
which Rome was but prima inter pares. As they grew, jeal- 
ousies led to border wars, in which that single city long main- 
tained a doubtful conflict with neighbors too nearly her equals to 
be completely subdued. As Rome waxed great, and the privi- 
leges of her citizenship became more and more highly prized, 
what her arms alone had failed to accomplish, she did by her 
policy ; she absorbed the neighboring tribes into her own organi- 
zation, and thus, from one of the loosest, became one of the 
compactest and most enduring nationalities that the world has 
ever seen. 

Such is the method of Nature in the genesis of nations ; be- 
ginning with elements diverse and discordant, she ends by 
kneading them into likeness and unity. 

It should be noted, too, that whether this process be slow or 
rapid, the nature of the result is the same. Thus, what Rome 
was many centuries in accomplishing, under the circumstances 
that surrounded her — barbaric populations on all sides, want 
of roads, of facilities for education, of a sufficient public revenue, 
of nearly every thing that gives impulse to national growth, 
— a people, however heterogeneous, endowed with steam, in 
its thousand applications, with the telegraph, the printing-press, 
and, above all, with that modern spirit, which is fruitful of great 
enterprises, in all departments of human endeavor, under circum- 
stances the most adverse, would be able to achieve in a few 
decades of years. 

Now, the conditions presented by the United States were, in 
our early history, similar to those of Rome. Our land was 
dotted over with isolated communities, that had sprung up here 
and there sporadically, as chance had led to settlement. Grow- 
ing from remote and too frequently hostile societies, out into the 
presence of each other, what affinities they had, from identity 
of race, laws, literature, and religion, and from similarity of cir- 
cumstances and condition with respect to European nations, 
were set actively at work, as also their mutual repulsions. 

But there was this difference between America and Rome, — 



STEPS TOWAEDS A NATIONAL UNION IN AMERICA. 35 

the latter arose slowly, and with struggles tedious and endless, 
ages before the birth of Christ ; the former sprang up two thou- 
sand years later, after the life and teachings of that Divine per- 
sonage had fruited into the institutions of our time, when, as 
compared with that of Rome, a day, in its actual achievement, 
is as a thousand years. 

In this manner and under these influences, the United States 
have become what we see. Whether the result has been to 
make of them a nation, is the question. So far as the metliod 
of their development is concerned, there are furnished, I think, 
affirmative indications. 

§ 34. When we look closely at the successive steps by which 
we came to be what we are, the probability that we have ripened 
into a nation is much increased. 

The most prominent characteristic of American constitutional 
history, is a constant and impressible tendency toward union. 

Including the crowning act, by which the people of the United 
States crushed the attempt at disunion in 1861-5, there have 
been taken in our history eight capital steps toward the con- 
summation of a complete national union. These occurred in 
1643, in 1754, in 1765, in 1774, in 1775, in 1781, in 1789, and 
1861-5. Comparing these steps with one another, there is vis- 
ible in them a steady progress in two particulars : first, in the 
number of the colonies or States participating in them ; and, 
secondly, in the scope of the successive schemes of union, the 
establishment of which was sought or accomplished by them 
respectively. 

1. Thus, a scheme of union was formed in 1643 by four colo- 
nies ; in 1754, by seven ; in 1765, by nine ; in 1774, by twelve ; 
in 1775, by thirteen, — the last two resulting in the revolution- 
ary congresses preceding the confederation ; in 1781, by thirteen, 
with great reluctance establishing the confederation ; in 1789, 
by thirteen, with less reluctance — it may almost be said, with 
eagerness — founding the present establishment; and in 1861-5, 
by twenty-five loyal, and a loyal minority in each of eleven dis- 
loyal States, by force of arms crushing the power of a faction 
seeking to destroy the Union. 

2. Without particularizing the scope of each of these eight 
efforts at the consolidation of a union, with which all readers of 
our history are familiar, it is enough to observe, that the first 



86 STEPS TOWAEDS A NATIONAL UNION IN AMERICA. 

was a simple league of four New England colonies against the 
Indians, and their hostile neighbors, the Dutch ; the two follow- 
ing were similar in their general purpose, but broader in intent 
and compass ; the next two, as explained above, were broader 
still, embracing practically the entire continent, and being de- 
signed to engineer the contest with Great Britain ; the sixth was 
the first formal and regular attempt to establish a government 
for united America, but undertaken with such fear and jealousy, 
that the system established stood only so long as it was held 
together by pressure from without ; the seventh was an aban- 
donment of the idea of confederation, and the introduction of 
the conception of a national government, framed by the people 
of the United States, the several State governments being at 
the same time shorn of much of their former power, and rele- 
gated to the secondary position held by them as colonies under 
the Crown. The last, supreme step was that in which two mill- 
ion men in arms have, in our day, stamped with condemnation 
the heresy of secession, and denied the rightfulness of dis- 
union either as fact or as theory ; thus giving to that series of 
acts and charters by which the rights of the colonies were de- 
fined and guaranteed, a practical construction, and justifying the 
inference, that union — the consolidation of the various commu- 
nities forming the United Colonies into one people, one nation — 
was at once the purpose of God, and the design, sometimes con- 
sciously and sometimes unconsciously entertained, of the men of 
all times in America. 

§ 35. Every step of our progress from 1643 to 1865 being 
upon convergent lines, of which the point of meeting would be 
a perfected union, in my judgment, when the Constitution of 
1789 was ratified, if not before, we became that which, on the 4th 
of July, 1776, we had declared ourselves to be, " one people" or 
nation, free and independent. Then, at the latest, the bundle of 
States, loosely bound together by the Articles of Confederation, 
emerged into view as a political society, and, as such, assumed 
the power of ordaining a government for itself, as well as for its 
members, before that claiming to be sovereign. Certainly, if the 
process of fusion, which a century and a half had been carrying 
on, had not then become complete, the conditions necessary for 
its ultimate completion had been supplied, the collective society 
having been placed in such bonds and subjected to such influ- 



RATIFICATION OP FEDERAL CONSTITUTION. 87 

ences that the process must go on, and that rapidly. These 
bonds, every year of the union has seen growing stronger and 
stronger. Beginning, as we have seen, with the same blood, 
language, religion, and civilization, with a love of the same lib- 
erties, with a unanimous voice for the same republican forms, 
with a compact territory, and a recognized name abroad only as 
a Union, to these there have been added the bonds of nearly a 
century of associated life, to say nothing of wars prosecuted 
together and shedding a common glory over that Union, for 
whose defence or enlargement they have been waged. All 
these, it seems, whatever we may have been when we started in 
the race, ought to have left us a nation, in heart and affection, as 
they have in fact and in law. 

§ 36. The next fact to which I shall advert, as furnishing a 
ground of inference that we are a nation, is, that the Constitu- 
tion of 1787 was ratified by the people of the United States ; in 
this respect violating the law and departing from the precedents 
previously in force. 

By the thirteenth of the Articles of Confederation, it had been 
provided, that no alteration of said articles should at any time 
thereafter be made, unless such alteration should be agreed to in a 
Congress of the United States, and " be afterwards confirmed by 
the legislature of every Slate.^^ That is, by the Federal Consti- 
tution, in force when the present one was formed, no change 
could be made in the provisions of the former, but by the action 
of the Slate governments, that is, of the States, considered as 
political organizations. This important constitutional interdict 
the Convention of 1787, for reasons deemed adequate, disre- 
garded. It provided for the ratification of the proposed Con- 
stitution by Conventions of the people to be called in the several 
States by the legislatures thereof ; that is, for its ratification by 
the people of the United States, acting, as was alone possible, 
in groups of such size as to be not inconvenient, and so arranged 
that advantage could be taken of the existing electoral ma- 
chinery, which belonged exclusively to the States. This method 
was wholly new, and involving, as it clearly did, a violation of 
the Articles of Confederation, must have been adopted, because 
it was thought absolutely necessary to bring forward the Con- 
stitution just matured under wholly new conditions ; to base it, 
not upon the States, but upon the broader and more solid foun- 



38 VIEW OP THE STATES RIGHTS SCHOOL. 

dation of the people of the United States, conceived of no 
longer as a cluster of badly cohering populations, but as a 
majestic unit, which, having emerged into existence, had at last 
compelled its own general and public recognition. Such is the 
lesson to be learned from the mode of ratification of the present 
Constitution. 

§ 37. It must be admitted, that a different view has been taken 
of the bearing of the mode of ratifying the Federal Constitution 
on the question of our nationality. The political school, of 
which Mr. Jefferson was the founder, and Mr. Calhoun the great 
apostle and expositor, known as the " States Rights School," have 
deduced their favorite dogma of the sovereignty of the States, 
from the alleged ratification of the Constitution by the States ; 
the argument being, that what the States formed and established 
they may, for reasons deemed to be sufficient, abrogate and 
annul. This school, admitting that the Constitution was re- 
quired by its terras to be ratified by Conventions of delegates 
" chosen in each State by the people thereof," that is, by the 
people of the United States, considered as gathered into groups, 
by States, nevertheless maintain that, as a majority of the 
voices in each group or State was made requisite to its adop- 
tion, and not simply a majority of the aggregate of all the 
groups, the ratification must be considered substantially as pro- 
nounced by the States. 

The reply is, that a majority of each State's electors, rather 
than of the aggregate of the electors of the Union, was required, 
not out of respect for the rights of the States, or with a view to 
found the new system upon the States, but to conform, as nearly 
as might be, to the positive requirements of the existing Consti- 
tution. The thirteenth of the Articles of Confederation required 
all alterations therein to be recommended by Congress and to be 
confirmed by the legislature of each State. Now, two difficulties 
were apprehended in attempting to conform strictly to this 
requirement. First, it was doubted whether a unanimous vote 
of all the States could be secured for the proposed plan. Hence 
it was provided by the Convention — Article VII. of the new 
Constitution — - that the ratification of the Constitution by nine 
States should be sufficient for the establishment thereof between 
the States so ratifying the same. Secondly, it was feared that 
reluctance to surrender the reins of power, now in their hands, 



IMPORT OF MODE OF RATIFICATION. 39 

might lead the majority in the several State legislatures, if the 
question of ratifying the Constitution were left to those bodies, 
to reject it, even in States, v^^hose citizens would be disposed to 
ratify it. Hence the Convention wisely determined to disre- 
gard the thirteenth article requiring a ratification in that manner, 
and to commit the fate of the instrument to Conventions spe- 
cially chosen by the people for the very purpose of passing 
upon it. 

But, while the Convention resolved to disobey the letter of the 
Constitution in allowing the system to be established on the 
ratification of nine States, and in substituting Conventions for 
legislatures as the ratifying bodies, they departed from the 
requirements of the Constitution no farther than was deemed 
necessary. The principle of unanimity was preserved by requir- 
ing the consent of each State which should be comprised in the 
new system to be given to its provisions ; that is, no State was 
to be compelled to adopt the proposed Constitution, or, without 
adoption by its own citizens, to be governed by it. So, also, the 
old principle of independent State action was made to coexist 
and harmonize with the new principle of founding the polit- 
ical structure upon the basis of the people of the United States, 
by requiring the vote upon its establishment to be taken in the 
several States, but by the people thereof in their elementary 
character as citizens, and not as forming the governments of the 
States respectively. This, indeed, as already stated, was the 
only way in which a vote could have been taken at all, under 
any effective safeguards to secure its authenticity and purity. 
Except in the States, there was a total lack of the machinery 
necessary to inaugurate Conventions to adopt or reject the pro- 
posed Constitution. 

§ 38, But, even if it were admitted that the present Constitu- 
tion was ratified by the States, in the manner and in the capacity 
claimed by the politicians of the States Rights School, it would 
not follow that the separate communities brought thereby into a 
closer union did not, by the federal act, become a nation ; nor, 
if they be conceded to have been sovereign societies under the 
Confederation, that they did not merge, each its separate sov- 
ereignty, in that of the Union. We have seen that two or more 
sovereign societies may become united into one, and that upon 
such union sovereignty becomes inherent in the resultant so- 



40 OPINIONS OP CONTEMPOEAEIES. 

ciety. Whether it does so or not, however, depends upon the 
closeness of the union, to be ascertained from all the facts of 
the case, among the most important of which is doubtless the 
intent of the uniting peoples, as determined by the phraseology 
of the instrument embodying the conditions of the union. If, by 
the true construction of that instrument, the States, theretofore 
supposed to be sovereign, were intentionally shorn of their sov- 
ereignty and subordinated to a new organization, by its terras 
declared to be supreme, and especially if, by it, there were rec- 
ognized as existing in the United States, — whether then for the 
first time or not, matters not, — a power competent to control, 
alter, or annul both the States and the general government, thus 
declared to be supreme, it could not be denied, that such power, 
the people of the United States, was the sovereign power of the 
Union, from the time such instrument was ratified. Indeed, if it 
be assumed, that the purpose of the people in forming the 
present Constitution was to merge in the single sovereignty of 
the Union the sovereignties of thirteen independent sovereign 
States, no mode of ratifying the instrument was possible, but 
that by the action of the States themselves, substantially like 
that which actually took place. 

§ 39. One of the most valuable indications from which to 
determine whether or not we became a nation by the estab- 
lishment of either of our two Constitutions, is derived from 
the expressed opinions of contemporary statesmen, friends as 
well as enemies of the systems thereby founded. 

Respecting the effect of the first Federal Constitution, called 
the Articles of Confederation, some doubt has been not un- 
naturally entertained. It did not make of us a nation, for that 
is what no Constitution could do. Nor did it, in explicit terms, 
declare us to have become, or to be, a nation. And, yet, in ray 
judgment, at the time the Confederation was formed, we were 
in fact a nation, though the process of fusion had not been 
completed. The insane passion for state autonomy, rife during 
the early years of the Revolutionary war, had not subsided. 
Because the war had proved successful, notwithstanding the im- 
perfection of the Union, men gave to the crazy fabric, under 
which it had been carried on, more credit for that result than it 
deserved. It took six years of peace, crowded with inter-state 
bickerings, and with constant exhibitions of imbecility by a 



OPINIONS OF CONTEMPORAEIES. 41 

government, which, whatever else it could do, could not govern, 
to teach our fathers, that, if their union still subsisted, it was in 
spite of their government, and that if they did not desire, within 
the borders of each State, to see a repetition of the rebellion 
kindled by Shay in Massachusetts, ending, perhaps, in a general 
civil war, they must substitute for the rotten structure of the 
Confederation a Constitution which should confirm and not 
undermine and break up their actual union. Under these im- 
pulses, the Constitution was framed. But the circumstances I 
have mentioned led to the formation of two parties, one strenu- 
ous for its adoption and the other bent, by any and all means, 
upon defeating it. The charges and admissions of the two 
disputants discussing its provisions, furnish valuable indications 
as to the nature of the Union and of its connecting bond, as 
viewed by men then living. The citations I shall make will be 
such as bear especially on the present Constitution. 

§ 40. In the Convention which framed the Federal Constitution, 
the opposing views indicated were brought into prominence by 
a question of power, early raised by the partisans of a confed- 
erate government. Mr. Randolpli of Virginia having introduced 
what is known as the Virginia plan, which formed the basis of 
the Constitution finally established, it was assailed by the friends 
of a Confederation on the ground that it was a scheme of na- 
tional government, and that, as their credentials restricted them 
to the proposing of amendments to the system then in force, it 
was beyond their powers to form such a government. To the 
answer made to this objection, that the government then in 
force, however improved and strengthened, would be, as it had 
been, utterly insufficient to secure the declared objects thereof, it 
was replied, that that might be true, but that if so, it furnished a 
reason rather for adjourning and seeking further powers than for 
usurping such as were confessedly not vested in them.^ The 

1 The first resolution of Mr. Kandolph was as follows : — " Resolved, That a 
union of the States, merely federal, will not accomplish the objects proposed by 
the Articles of Confederation, namely, common defence, security of liberty, and 
general welfare." Mr. Charles Pinckney observed, that "if the Convention 
agreed to it, it appeared to him, that their business was at an end ; for, as the 
powers of the house, in general, were to revise the present confederation, and to 
alter or amend it, as the case might require, to determine its insufficiency or in- 
capability of amendment or improvement, must end in the dissolution of the 
powers."— Yates' Minutes, (1 Ell. Deb.) pp. 391, 392. 



42 OPINIONS OP CONTEMPORARIES. 

force of this argument was felt, but the Convention relieved 
itself from the dilemma, by recalling the fact that its duty was 
not to conclude but to recommend, and that where such was 
the fact, particularly under the circumstances of the country, 
they must recommend measures that promised to be adequate 
to the exigencies of the occasion ; and that to adjourn without 
doing so, because they found the defects of the old system more 
radical than had been supposed, would be to plunge into an- 
archy and civil war. Mr. Randolph, as reported by Mr. Madi- 
son, said, — " When the salvation of the Republic was at stake, 
it would be treason to our trust not to propose what we found 
necessary." ^ Mr. Hamilton said, — " He agreed with the hon- 
orable gentleman from Virginia (Mr. Randolph) that we owed 
it to our country to do on this emergency whatever we should 
deem essential to its happiness. The States sent us here to pro- 
vide for the exigencies of the Union. To rely on and propose 
any plan not adequate to these exigencies, merely because it 
was not clearly within our powers, would be to sacrifice the 
end to the means." ^ 

Mr. Madison took a similar view. He said, — "A new gov- 
ernment must be made. Our all is depending on it; and if we 
have but a clause that the people will adopt, there is then a 
chance for our preservation." ^ Mi'. Mason said, — " The prin- 
cipal objections against that " (the plan) " of Mr. Randolph, were 
the want of power and the want of practicability. There can 
be no weight in the first, as the fiat is not to be here but in the 
people. He thought with his colleague (Mr. Randolph) that 
there were, besides, certain crises in which all the ordinary cau- 
tions yielded to public necessity. He gave as an example the 
eventual treaty with Great Britain, in forming which the com- 
missioners of the United States had wholly disregarded the 
improvident shackles of Congress ; had given to their country 
an honorable and happy peace, and instead of being censured 
for the transgression of their powers, had raised to themselves a 
monument more durable than brass."* Mr. C. C. Pinckney 
" thought the Convention authorized to go any length in recom- 

1 Elliott's Del., Vol. V. p. 197. 

2 Id. p. 199. 

3 Yates' Minutes, in Vol. I. Ell. Deh. p. 423. 

4 Ell. Deh., Vol. V. p. 216. 



INFERENCE FROM THESE OPINIONS. 43 

mending, which they found necessary to remedy the evils which 
produced this Convention." ^ 

§ 41. From these extracts two things are evident, — first, that a 
change from the Confederation was deemed by the Convention 
absolutely necessary for the preservation of the States, for that 
body acquiesced in the reasonings contained in them and acted 
upon them ; ^ and, secondly, that the national plan of Mr. Ran- 
dolph, or some approach to it, was what was demanded by the 
exigencies of the Union. 

§ 42. Thus it was that the new Constitution was viewed and 
characterized in the Federal Convention, Another indication 
may be drawn from the arguments used by its enemies in the 
several State Conventions, called to pass upon it. To those State 
conventions the Constitution was submitted as a project of a 
complete system, to take the place and supply the deficiencies 

1 Ell. Deh., Vol. V. p. 197. See also Yates' Minutes, in Vol. I. Ell. Deh. pp. 
414, 415, 417, 418, 428, 492-5. 

2 How urgent the necessity for a government of large powers was thought to 
be, may be inferred from the intimations, several times thrown out during and 
after the Convention, that it might become necessary to compel a union under 
the proposed Constitution, if not accepted voluntarily. Thus Gouverneur Morris 
said in the Convention : — " Tiiis country must be united. If persuasion does 
not unite it the sword will. He begged this consideration might have its due 
weight." (Ell. Deh., Vol. V. p. 276.) Madison, in a letter to Washington, written 
while the question of adopting the Constitution was pending in New York, 
said : — " There is at present a very strong probability that nine States at least 
will pretty speedily concur in establishing it " (the Constitution). " What will 
become of the tardy remainder ? They must be either left, as outcasts from 
the society, to shift for themselves, or be compelled to come in, or come in of 
themselves when they will be allowed no credit for it." Id. p. 568. Two days 
afterwards, October 30, 1787, Gouverneur Morris, writing also to Washington of 
the prospect of adopting the Constitution in New York, and of the condition 
of things in case she were to reject it, said : — " Jersey is so near unanimity in 
her favorable opinion that we may count with certainty on something more than 
votes should the state of affairs hereafter require the application of more 
pointed arguments. New York, hemmed in between the Avarm friends of the 
Constitution, will not easily, unless supported by powerful States, make any im- 
portant struggle, even though her citizens were unanimous, which is by no 
means the case. Parties there are nearly balanced. (Ell. Deh., Vol. I. p. 505.) 
In the Massachusetts Convention, Colonel Thompson s])oke of force as con- 
templated, after nine States should have adopted the Constitution, to compel the 
remaining four to come in. He said : — " Suppose nine States adopt this Con- 
stitution, who shall touch the other four ? Some cry out, Force them. I say, 
Draw them." — Ell. Deb., Vol. H. p. 61. 



44 OPINIONS OF CONTEMPOEAEIES. 

of the old Confederation. Admitting, as did both the friends 
and. the enemies of the Constitution, the absolute necessity of 
a change, how far did the latter regard the change proposed 
by it as extending? It is perhaps not fair to take the charges, 
often mere calumnies, of its enemies, as decisive of its character 
and powers. But the charges made were made by the States 
Rights party of that day, and there seems a sort of justice in 
quoting that party against itself, when its arguments against 
the Constitution are at different times mutually destructive. 
Besides, if a presumption is to be indulged, it is, that there 
was greater honesty in the party when in the early days of 
our political history it charged that the proposed Constitution 
formed a national or a consolidated government, than when 
at a later day, and still in the interest of State autonomy, it 
charged that it founded a government not differing in principle 
from that of the Confederation. 

The ablest opponent of the new Constitution was doubtless 
Patrick Henry of Virginia, and the main gi-ound of his opposi- 
tion was, that it was a scheme of a consolidated government. 
In the Convention of that State, he said, — 

" And here I would make this inquiry of those worthy char- 
acters who composed a part of the late Federal Convention. 
I am sure they were fully impressed with the necessity of 
forming a great consolidated government, instead of a con- 
federation. That this is a consolidated government is demon- 
strably clear ; and the danger of such a government is, to my 
mind, very striking. I have the highest veneration for those 
gentlemen ; but, sir, give me leave to demand, what right they 
had to say. We the people ? My political curiosity, exclusive of 
my anxious solicitude for the public welfare, leads me to ask, 
who authorized them to speak the language of, We the people, 
instead of, We the States ? I States are the characteristics and 
the soul of a confederation. If the States be not the agents of 
this compact, it must be one great consolidated national govern- 
ment of the people of all the States." 

So, in the North Carolina Convention, Mr. Taylor said : — 
" This is a consolidation of all the States. Had it said, We the 
/States, there would have been a federal intention in it. But, sir, 
it is clear that a consolidation is intended. Will any gentle- 
man say, that a consolidated government will answer this coun- 



OPINIONS OF CONTEMPORARIES. 45 

try ? . . . I am astonished, that the servants of the legislature 
of North Carolina should go to Philadelphia and, instead 
of speaking of the State of North Carolina, should speak of the 
people. [I wish to stop power as soon as possible, for they may 
carry their assumption of power to a more dangerous length. I 
wish to know where they found the power of saying. We the 
jjeople, and consolidating the States." ^ 

A similar charge was made in perhaps every one of the State 
Conventions called to pass upon the Constitution. 

§ 43. Now, it is not pretended, nor was it ever admitted by the 
friends of the Constitution, that that instrument in fact proposed 
a consolidated government. A consolidated government was 
defined by those who considered ours to be such, to be either, 
first, one " which puts the thirteen States into one," ^ or, secondly, 
" one that will transfer the sovereignty from the State govern- 
ments to the general government." ^ It is preposterous to apply 
either of those definitions to the system contained in the Con- 
stitution. The first does not apply, because, as stated by Mr. 
Wilson, in the Pennsylvania Convention, the proposed govern- 
ment " instead of placing the State governments in jeopardy, is 
founded on their existence. On this principle its organization 
depends ; it must stand or fall, as the State governments are 
secured or ruined."* The second definition applies no better, 
because the Constitution, whatever else it does, clearly does not 
transfer the sovereignty to the general government. Nobody, 
so far as I am aware, ever supposed the source of all power in 
the United States to be the general government. But the friends 
of the Constitution did not and could not deny, that it com- 
prised the outlines of a firm national government of extensive 
powers. The scheme it presented, however, had other than na- 
tional features. It was, in a word, a project of a mixed char- 
acter, partly federal, as not annihilating, but on the contrary 
weaving into its texture as an essential part, the States, shorn 
doubtless of much of their powers, but still powerful and dig- 
nified organizations ; and partly national, as founding the whole 
system, in all its features, both federal and national, on the peo- 

1 Ell. Deb., Vol. in. pp. 22, 23. 

2 Ell. Deb., Vol. II. pp. 503-504. 

3 Ibid. 

4 Ibid. 



46 OBSEEVATIONS ON THESE OPINIONS. 

pie of the United States, then first emerging from the chaos of 
political elements into distinct and unmistakable prominence 
as a society, to be, according to that Constitution, one and indi- 
visible forever.^ 

§ 44. Such was the character of the Constitution as viewed 
by its earliest enemies and its earliest friends ; it was partly fed- 
eral and partly national. Though it was the original purpose, 
unquestionably, of some of the most important States, to found 
a government possessed of more national features than the one 
proposed, that purpose had been frustrated by the determined 
opposition of the smaller States in the Convention, and a com- 
promise had been made by which the government was to be, in 
its foundation and in its principal features, national, but, so far 
as the continued existence of the States was concerned, federal, 
— a most happy compromise, and perhaps the only one ever 
made in America, which, on the whole, sound statesmanship 
ought not only not to reject, but ought to regard as the most 
valuable and admirable feature in our whole system. 

§ 45. As bearing on the question whether we are a nation or 
not, the facts stated above justify the following observations : — ■ 

1. The fact that the government under which we live, founded 
by the existing Constitution, is national only in part, does not 
prove that we are not now, or were not, at and before the time 
of its formation, a nation. It is evidence merely that, if we had 
been a nation before we formed it, it had not been deemed ex- 
pedient to establish a government in v^hich the principle of our 
nationality should be prominently asserted ; but, on the contrary, 
that the nation should forego its right to found a single estab- 
lishment by which to govern itself as a whole, and should per- 
mit the peoples of the several States to exercise in ample 
measure, but still in subordination to it, self-government, so far 
as concerned their local affairs. 

2. The fact, on the other hand, that the general government 
•was, in its inception, national to any extent, is conclusive evi- 
dence that there was a nation back of it as its founder. It is 
impossible to escape from this conclusion. It is only a nation 
that can found a national government, or a government of which 
substantive features are national, to continue forever, for it is 

1 See the masterly exposition of the mixed character of the government 
founded by the Constitution, made by Madison, in the Federalist, No. 39, 



JUDICIAL DECISIONS. 47 

incredible that many distinct communities, not become one in 
sentiment, opinion, and physical circumstances, to such an ex- 
tent as to render an entirely separate existence impossible, should 
ever consent to such a government. The leading points in the 
definition of a nation are, first, that there is such a unity of 
blood, of interest, and of feeling, in its component parts, that 
they fly together by a force of attraction that is practically irre- 
sistible, — they must live a common life; and, secondly, that 
there is such an identity in their situation, in relation to other 
communities, and consequently in the estimation in which they 
are held and in the dangers which threaten them, that they can- 
not live asunder. Both of these points concurred in the system 
founded by the Constitution of 1787. Our fathers must, as they 
expressed it, " join or die ; " that is, they were impelled by every 
consideration that can draw men together, — the ties of blood, 
language, religion, common interest, and common glory, — to live 
together; and it was impossible, on account of inevitable border 
wars, carried on from ambition or revenge, and from the greed 
of foreign nations, that they should live apart. 

§ 46. There remains still another source of evidence bearing 
on the question of our nationality, namely^ judicial decisions and 
the opinions of statesmen and publicists subsequent to the for- 
mation of the existing Constitution. From the multitude of 
authorities of the kind referred to, I shall select but a few, and 
those mainly of an early date, bearing, some on the question of 
our nationality and some directly on the question of the locus of 
the powers of sovereignty in the United States. 

In 1793, during Washington's administration, the question 
arose in the Supreme Court of the United States, directly and 
unequivocally, where rests the sovereignty in the United States ? 
Does it reside in the States or in the government of the United 
States, or, finally, is it lodged in the people of the United States ? 

The question arose thus : In the case of Chisholm, executor, 
a citizen of South Carolina, v. The State of Georgia, a motion 
was made by the Attorney-General, of counsel for the plaintiff 
in that court, requiring the State of Georgia to cause an appear- 
ance to be entered therein, in her behalf, on or before a day 
named, or, in default thereof, that judgment go against the State 
by default. The State refused to appear formally, but counsel 
represented her informally, and protested against the jurisdiction 



48 JUDICIAL DECISIONS. 

of the court to require the State to appear before it, on the 
ground, with others, that she was a sovereign State, and so, not 
suable by a citizen of another State in the courts of the Union, or 
elsewhere, except in her own courts, without her own consent. 
The nearly unanimous decision of the five judges then compos- 
ing the court was against the State of Georgia on all the points 
raised. I shall cite mainly from the opinion delivered by Mr. 
Justice Wilson, one of the profoundest constitutional judges 
that ever graced the bench in the United States, not inferior, in 
my judgment, to Chief Justice Marshall himself. Justice Wil- 
son said : " This is a case of uncommon magnitude. One of 
the parties to it is a state, certainly respectable, claiming to 
be sovereign. The question to be determined is, whether this 
State, so respectable, and whose claim soars so high, is amen- 
able to the jurisdiction of the Supreme Court of the United 
States. This question, important in itself, will depend on others 
more important still ; and may, perhaps, be ultimately resolved 
into one no less radical than this : ' Do the people of the Uni- 
ted States form a Nation ? ' " i After a luminous exposition of 
the various meanings of the term state, he defines sovereignty, 
and proceeds : " As a citizen, I know the government of that 
State (Georgia) to be republican; and my short definition of 
such a government is, one constructed on this principle, — that 
the supreme power resides in the body of the people. As a 
judge of this court, I know, and can decide upon the knowledge, 
that the citizens of Georgia, when they acted upon the large 
scale of the Union, as a part of the ' people of the United States,' 
did not surrender the supreme or sovereign power to that State ; 
but, as to the purposes of the Union, retained it to themselves. 
As to the purposes of the Union, therefore, Georgia is not a sov- 
ereign StaLe.^^ 2 In another part of the same opinion, the learned 
judge makes the following important observation : " To the 
Constitution of the United States the term sovereign is totally 
unknown. There is but one place where it could have been used 
with propriety. But, even in that place, it would not, perhaps, 
have comported with the delicacy of those who ordained and 
established that Constitution. They might have announced 
themselves " sovereign " people of the United States. But, 

1 Chisholm, Ex'r, v. State of Georgia, 2 Dall. 453. 

2 Id. 457. 



OPINIONS OF STATESMEN, HISTORIANS, AND PUBLICISTS. 49 

serenely conscious of the fact, they avoided the ostentatious 
declaration." ^ Concluding an exhaustive examination of the 
Constitution, Justice Wilson thus announces his opinion on 
the ultimate question with which he began, Are we a nation? 
" Whoever considers, in a combined and comprehensive view, 
the general texture of the Constitution, will be satisfied that the 
people of the United States intended to form themselves into a 
nation for national purposes. They instituted for such purposes 
a national government, complete in all its parts, with powers 
legislative, executive, and judiciary ; and, in all those powers, 
extending over the whole nation." ^ 

§ 47. It would be easy to fill these pages with judicial opin- 
ions confirmatory of these views, but space will not permit.^ I 
confine myself to such as were delivered before the heresies of 
the Kentucky and Virginia resolutions were broached, — while 
the government of the Union was running under its original 
impulse, and before the party platform had been elevated into 
an ulterior constitution, assuming to control the exposition of 
that which the fathers had formed. 

A few citations will now be made of the opinions of states- 
men, historians, and publicists, of a later period, to whom has 
been accorded authority on constitutional questions. Thus, 
Washington, in a letter of June 8, 1783, said : " It is only in our 
united character that we are known as an empire, that our inde- 
pendence is acknowledged, that our power can be regarded, or 
our credit supported abroad."^ So, still more explicitly, in his 
first inaugural address of April 6, 1789, he said : " Every step 
by which they " (the United States) " have advanced to the 
character of an independent nation, seems to have been distin- 
guished by some token of providential agency." ^ In his his- 
tory of the American Revolution, published in 1789, and after- 
wards in his history of the United States, Dr. Ramsay says : 
" The act of independence did not hold out to the world thir- 

1 Chisholm, Ex'r, v. State of Georgia, 2 Dall. 454. 

2 Id. 465. See also the opinions in the same case of Justices Gushing and 
Blair, and of Chief Justice Jay. 

3 See, on the whole subject, Martin v. Hunter, 1 Wheat. 304 (324) ; McCul- 
lough V. The State of Maryland, 4 Wheat. 316. 

4 5 Marsh. Washington, p. 48. 

5 Presidential Speeches, p. 31. 

4 



^ 



50 OPINIONS OF STATESMEN, HISTORIANS, AND PUBLICISTS. 

teen sovereign States, but a common sovereignty of the whole 
in their united capacity." ^ So, General C. C. Pinckney, in a 
debate in the South Carolina House of Representatives, in 
1788, speaking of the Declaration of Independence, said : " This 
admirable manifesto sufficiently refutes the doctrine of the indi- 
vidual sovereignty and independence of the several States. In 
that declaration the several States are not even enumerated, but 
after reciting, in nervous language, and with convincing argu- 
ments, our right to independence, and the tyranny which com- 
pelled us to assert it, the declaration is made in the following 
words The separate independence and individual sover- 
eignty of the several States were never thought of by the en- 
lightened band of patriots who framed this declaration. The 
several States are not even mentioned by name in any part, as 
if it was intended to impress the maxim on America, that our 
freedom and independence arose from our union, and that, with- 
out it, we never could be free or independent. Let us, then, 
consider all attempts to weaken this Union, by maintaining that 
each State is separately and individually independent, as a spe- 
cies of political heresy, which can never benefit us, but may 
bring on us the most serious distresses." ^ Cliarles Pinckney, 
also, in his observations on the plan of government submitted 
by the Federal Convention, said : " The idea, which has been 
falsely entertained, of each being a sovereign State, must be 
given up, for it is absurd to suppose that there can be more 
than one sovereignty within a government." ^ 

§ 48. Coming down to later times, I shall first cite the opinion 
of Mr. Grimke, a South Carolinian without guile and of emi- 
nence not inferior to that of the great names of the Revolution. 
Commenting on the opinions of the two Pinckney s, given in 
the last section, in the celebrated "allegiance cases," argued 
before the Court of Appeals of South Carolina, in 1834, Mr. 
Grimke said : " I do not fully agree with either of the Pinck- 
neys, but certainly the truth that the United States constitute 
one nation, and that the States are not nations, is found in vari- 
ous forms scattered all along the highway which our country has 
been travelUng since 1776. It would be difficult to find his- 

1 Ramsay's Hist. U. -S. Vol. III. pp. 174, 175. 

2 4 Ell. Deh. p. 301. 

3 Quoted by Mr. Grimke, arguendo, in 2 Hill's S. C R. 57. 



THE STATES WERE NEVER SOVEREIGN. 61 

torical evidence on any point more full, particular, and various." 
To the same effect, Chancellor Kent, speaking of the colonies 
in 1776, in his Commentaries, says : " Gradually assuming all 
the powers of national sovereignty, they at last, on the 4th of 
July, 1776, took a separate and equal station among the na- 
tions of the earth, by declaring the united colonies to be free and 
independent States." ^ So, John Quincy Adams, referring to 
the same declaration, in 1831, said : " By the Declaration of 
Independence, the people of the United States had assumed 
and announced to the world their united personality as a nation, 
consisting of thirteen independent States. They had thereby 
assumed the exercise of primitive sovereign powder; that is to 
say, the sovereignty of the people." ^ Justice Story makes a 
similar observation. " From the moment," he says, " of the 
declaration of independence, if not for most purposes at an 
antecedent period, the united colonies must be considered as 
being a nation de facto, having a general government over it 
created, and acting by the general consent of the people of all 
the colonies."^ These authorities are of great interest, as indi- 
cating that the point of time when we first announced ourselves 
to be a nation, preceded the establishment of the present Consti- 
tution by about thirteen years. We were, then, a nation during 
all the long eclipse of the Confederation, whilst unwise jealousy 
was preventing the constituent peoples of the Union from ad- 
mitting in their government the most salient and the most 
salutary fact of their history, namely, that they were one people 
forever, until driven to do so by the overwhelming pressure of 
events. 

§ 49. So far, then, as the question, Where does the sovereign 
power in the United States reside ? depends upon the other 
question. Are we a nation ? we are entitled to affirm that that 
power resides in the people of the United States constituting the 
American nation. Before formally drawing that conclusion, 
however, I desire to refer to a few authorities, from which it 
may be gathered that there has never been a time in our history 
when the States were sovereign ; and I shall do so at some 
length, because, it is obvious that if the States were not sover- 
eign at any time before the establishment of the present govern- 

1 1 Kent's Com. 208. 

2 Eulogy on Monroe, in Lives of Madison and Monroe^ p. 236. 

3 Story's Com. on Const. § 21.5. 



62 THE STATES WERE NEVER SOYEREIGN. 

ment, they cannot be so now, after having been shorn of many 
powers before that undoubtedly exercised by them, and at the 
same time not reinforced by a concession of new ones. 

In the Federal Convention, in 1787, Mr. Madison, as reported 
by Mr. Yates, delegate from New York, said : " There is a gra- 
dation of power in all societies, from the lowest corporation to 
the highest sovereign. The States never possessed the essential 
rights of sovereignty. These were always vested in Congress. 
Their voting, as States, in Congress, is no evidence of sover- 
eignty. The State of Maryland voted by counties. Bid this 
make the counties sovereign ? The States at present are only 
great corporations, having the power of making laws, and these 
are effectual only if they are not contradictory to the general 
Confederation. The States ought to be placed under control of 
the general government, at least as much so as they formerly 
were under the King and British Parliament." ^ 

§ 50. The opinion expressed thus in the Convention, that the 
States had never been sovereign, was in effect confirmed by the 
Supreme Court of the United States in 1795, in a case of prize, 
occurring under resolutions of the old Congress of the Confed- 
eration, passed in 1775. One question made in the case was, 
whether that body had power to authorize the taking of prizes, 
which properly belongs to the sovereign power. It was decided 
that it had. Justice Paterson said : " The question first in order 
is, whether Congress, before the ratification of the Articles of 
Confederation, had authority to institute such a tribunal," 
(" Commissioners for Appeals," for prize cases,) " with appel- 
late jurisdiction in cases of prize? Much has been said respect- 
ing the powers of Congress The powers of Congress 

were revolutionary in their nature, arising out of events, ade- 
quate to every national emergency, and coextensive with the 
object to be attained. Congress was the general, supreme, and 
controling council of the nation, the centre of union, the centre 
of force, and the sun of the political system. To determine 
what their powers were, we must inquire what powers they ex- 
ercised. Congress raised armies, fitted out a navy, and pre- 
scribed rules for their government. Congress conducted all 

1 Yates' Minutes, in Vol. I. of Elliott's Deb. pp. 461, 462. I do not use Mad- 
ison's report of the same debate in this case, because, though not contradictory 
of Yates, it is very brief. 



THE STATES WERE NEVER SOVEREIGN. 53 

military operations, both by land and sea. Congress emitted 
bills of credit, received and sent ambassadors, and made trea- 
ties ; Congress commissioned privateers These high acts 

of sovereignty were submitted to, acquiesced in, and approved 
of by the people of America. In Congress were vested, because 
by Congress were exercised, with the approbation of the people, 
the rights and powers of war and peace. In every government, 
whether it consists of many states or of a few, or whether it be 
of a federal or consolidated nature, there must be a supreme 
power or will ; the rights of war and peace are component parts 
of this supremacy, and incidental thereto is the question of 
prize. The question of prize grows out of the nature of the 
thing. If it be asked, in whom, during our Revolutionary war, 
was lodged, and by whom was exercised, this supreme author- 
ity ? no one will hesitate for an answer. It was lodged in, and 
exercised by. Congress ; it was there or nowhere ; the States 
individually did not, and with safety could not, exercise it." ^ 
So Chief Justice Jay, in a case in the same court, before referred 
to,2 said : " The Revolution, or rather the Declaration of Inde- 
pendence, found the people already united for general purposes, 
and at the same time providing for their more domestic con- 
cerns by State Conventions, and other temporary arrangements. 
From the crown of Great Britain the sovereignty of their own 
country passed to the people of jt. . . . The people . . . con- 
tinued to consider themselves, in a national point of view, as 
one people ; and they continued without interruption to manage 
their national concerns accordingly. Afterwards, in the hurry 
of the war and in the warmth of mutual confidence, they made 
a confederation of the States the basis of a general govern- 
ment. Experience disappointed the expectations they had 
formed from it, and then the people, in their collective and 

1 Penballow v. Doane's Administrators, 3 Dall. 54 (80). As the learned 
judge founds what he calls the sovereignty of Congress upon the acquiescence 
or approbation of the people, and implies that, without it, the power would not 
have belonged to that body, it is evident that he is in error in lodging sover- 
eignty with Congress at all. The exercise of sovereign powers was permitted to 
that body by the people of the United Colonies, who were the true sovereign ; 
(see post, §§ 55, 56.) This error, however, does not affect the general soundness 
of his argument, which in efiect lodges the power of sovereignty with some 
other than the States. 

2 Chishokn, Ex'r, v. State of Georgia, 2 Dall. 419 (470). 



54 ' ALLEGIANCE DEFINED. 

national capacity, established the present Constitution. It is 
remarkable that, in establishing it, the people exercised their own 
rights and their own proper sovereignty ; and, conscious of the 
plenitude of it, they declared with becoming dignity, ' We the 
people of the United States do ordain and establish this Consti- 
tution.' Here we see the people acting as sovereigns of the 
whole country, and, in the language of sovereignty, establishing 
a Constitution by which it was their will that the State govern- 
ments should be bound, and to which the State constitutions 
should be made to conform." ^ 

§ 51. Conceding, then, that we are a nation, the answer to the 
question with which we started some pages back — Where re- 
sides the sovereignty in the United States ? — is ready to our 
hand. It resides, and must reside, in the nation, considered as 
a political society or body corporate. Back of all the States and 
of all forms of government for either the States or the Union, we 
are to conceive of the Nation, a political body, one and indivis- 
ible, made up of the citizens of the United States, without dis- 
tinction of age, sex, color, or condition in life. In this vast 
body, as a corporate unit, dwells the ultimate power denomi- 
nated sovereignty. It is this body which declared itself, by the 
Continental Congi'ess, and under the name of the " United Col- 
onies," to be free and independent : " We, therefore, the repre- 
sentatives of the United States of America, . . . do, in the name 
and hy the authority of the good people of these Colonies, declare 
that these United Colonies are . . . free and independent States," 
— independent, that is, of the crown of Great Britain, not of 
each other. This body it is which formed the government of 
the Confederation, granting to it, indeed, few powers, and still 
leaving many and important ones to the peoples of the sev- 
eral States ; and it is this which afterwards, as we have seen, 
" ordained and established " the present Constitution, parcelling 
out anew and in different measure, the powers it saw fit to 
grant at all ; giving to the government of the Union broad na- 
tional powers, making its laws and Constitution supreme, and 
leaving to the peoples of the States other powers for local pur- 
poses, but stamping them with the mark of inferiority, as the 
parts are severally inferior to the whole. 

§ 52. If I am right in lodging the sovereign power in the 
1 See further on this subject, Story's Com. on Const. §§ 210-216. 



QUASI ALLEGIANCE AND QUASI SOVEREIGNTY. 65 

nation, the perplexing question of allegiance is easily deter- 
mined. 

Allegiance {alligo) is for the citizen, with respect to the state 
or sovereign society, what religion {religo) is for man, with re- 
spect to God, a dutiful recognition of the bond which connects 
them, in their relations as subject and sovereign. Allegiance 
relates to a temporal, as religion does to a spiritual or Divine, 
sovereign. Accordingly, as it would be sacrilege for a man to 
recognize as his spiritual sovereign or to acknowledge the bond 
implied in the term religion as uniting him with any being but 
God, so it would be an act of treason, in morals if not in law, 
for a citizen to recognize as entitled to sovereign rights — that 
is, to render allegiance to — any person or body, but the true 
sovereign, the nation. 

It is true, nevertheless, in the United States, that although 
the nation is the only real sovereign, the States are often called 
sovereign. But this use of the word is proper only as a figure 
of speech employed out of courtesy to numerous and dignified 
bodies invested with the exercise, for local purposes, of impor- 
tant sovereign powers. The States, at best, are but quasi sov- 
ereign ; that is, on account of their permissive supremacy in 
local State affairs, they are to be treated, to a certain extent, as 
z/" they were sovereign ; precisely as an ambassador, despatched 
to a foreign court and there representing his sovereign, is re- 
ceived and honored, on account of his office, as if he were him- 
self the sovereign. 

§ 53. To this quasi sovereignty corresponds a quasi allegiance, 
which every citizen owes to his State, in subordination to his 
true allegiance to the nation. This spurious allegiance, how- 
ever, so far as it is not a mere act of courtesy, is another name 
for the obedience due to the ministers of the real sovereign ; the 
truth being, that, in rendering obedience to the government of 
his State, a citizen of the United States is paying his allegiance 
to the people of the Union. This obedience is sometimes styled 
a " qualified allegiance," a thing as absurd as a qualified om- 
nipotence, unless by it be meant an allegiance which is not real 
but seeming ; that is, an act of obedience which would be one 
of allegiance were the body to which it is paid a sovereign body. 
Thus, in a late case decided by the Supreme Court of the Uni- 
ted States, Justice Grier said: " Under the very peculiar Consti- 



66 HOW SOVEREIGNTY INHERES IN THE NATION. 

tution of this government, although the citizens owe supreme 
allegiance to the federal government, they owe also a qualified 
allegiance to the State in which they are domiciled." ^ Treason 
is a crime against sovereignty, a violation of one's allegiance. 
Hence, there is really no such thing as treason against any polit- 
ical body in the Union but the United States. If a State, by its 
courts, punishes treason, it must be not as treason against itself, 
but as treason against the Union ; and, in this view, the propri- 
ety of that State legislation which defines treason against the 
State and affixes to it particular penalties, is doubtful. It would 
seem that the only principle on which such legislation can be 
sustained is, that a State has a right, under its general power of 
regulating its own internal police, to punish acts dangerous to 
the peace and safety of its citizens, giving to them such names 
as it pleases, although the same acts may constitute treason 
against the United States, and as such be punishable under the 
laws of the latter. On that principle. State laws have been sus- 
tained by the Supreme Court of the United States, affixing 
penalties to the act of counterfeiting the coin of the United 
States and other offences against the laws of the Union ; the 
same acts being declared, upon different grounds, having respect 
to the interests of each, to be crimes against both jurisdic- 
tions.2 

§ 54. 2. I come now to consider the second branch of the 
question stated, namely. How does sovereignty inhere in the 
people of the United States ? 

1 Claimants of the Schooner Brilliant, &c., Appellants, v. The United States, 
Am. Law Register, Vol. II. (new series) 334. 

2 See Fox v. State of Ohio, 5 How. 432. Also, Moore v. The People of 
Illinois, 14 How. E.. 13. Upon the whole doctrine of allegiance, in I'elation to 
both the States and the United States, see The State ex rel. M'Cready v. Hunt, 
and The State ex rel. M'Daniel v. M'Meekin, (the so-called " allegiance cases,") 
2 Hill's S. C. R. 1-282. These cases arose in South Carolina, in 1834, in 
connection with the nullification ordinances of the convention of that State, and 
involved the whole subject of sovereignty, allegiance, the relation of the States 
to the Union, and kindred questions. The majority of the court held, that the 
oath of allegiance prescribed to officers of the militia by the Act of 1833, "to 
provide for the military organization of this State," was " unconstitutional and 
void." No constitutional question has ever been discussed with greater ability 
and learning in the United States, than were those raised in these cases. They 
were argued for the relators by Mr. Grimke and Mr. Petigru, each clarum et 
venerabile nomen. 



SOVEREIGNTY UNDER CONDITIONS. 57 

To this question two answers may be given : — 

(a). That sovereignty inheres in the people considered simply, 
that is, as a unit, without conditions, or State or other internal 
discriminations. 

(b). That it inheres in the people only as discriminated into 
and acting in groups by States. 

To determine which of these answers is the correct one, in 
my judgment, we need but consider what is involved in the con- 
ception of sovereignty inhering in a society under conditions, 
as where the sovereign body is regarded as capable of acting as 
such only when discriminated into groups, by States, or other- 
wise. 

It is evident, that any particular mode of existence exhibited 
by sovereignty, except that of inhering in the political body as 
a unit, must be the result of voluntary regulation by the sover- 
eign itself; be, in other words, a self-imposed limitation, enforce- 
able only by moral sanctions. For, to suppose that sovereignty 
80 inheres in the political body that it can manifest itself only 
through some particular instrument, or in some particular mode, 
is to rob the sovereign of its essential attribute, that of perfect 
freedom, or the power of absolute self-determination. The fact 
that a particular instrument or mode has become established, 
may furnish a weighty moral reason why it should be used or 
followed; but to suppose a power anywhere existing of compel- 
ling the employment of either, would be to subject the sovereign 
to some extrinsic human superior, that is, to make, not it, but 
another, the real sovereign. 

§ 55. Again : the terms modes and instruments, when used in 
relation to the manifestation of sovereignty, merely indicate how 
sovereignty is exercised; refer, in short, to systems of govern- 
ment established by the sovereign, or conceived to be within its 
competence to establish. 

To contend, therefore, that sovereignty so exists in the sover- 
eign body that it is exercisable only in some particular mode, or 
through some particular instrument, is to say, that when govern- 
ment has been once ordained by sovereign authority, the latter 
ceases, with respect to that government, to be any longer sover- 
eign ; in other words, that, in the act of creation, sovereignty 
leaves the creator, and takes up its abode with the creature. 
The error upon which such an hypothesis rests, is that of 



58 POSSIBLE EXERCISE OP SOYEREIGNTT. 

taking the secondary forms into which the sovereign body re- 
solves itself as being severally the primary, substantial, and 
necessary form of sovereignty itself. On the contrary, that only 
can be the ultimate and essential form, which precedes the estab- 
lishment and survives the dissolution of all those special adjust- 
ments needed to bring into regular exercise the powers of sover- 
eignty, which constitute government. 

§ 56. To a full comprehension of the analysis exhibited in 
the last two sections, it is necessary to consider further, with 
reference to some particular form of government, as that of the 
United States, what is signified by the terms, the exercise of sov- 
ereign powers. 

By the exercise of sovereign powers is meant either, 1. The 
regular^ which, historically considered, is commonly, also, in 
constitutional governments, the actual exercise of it ; and, 2. The 
possible exercise of it, — a field of indefinite extent, commensu- 
rate with the needs of the sovereign body, as determined by itself. 

To be regular., unquestionably, the exercise of sovereignty 
must be conformable to established rule [regula) ; that is, to the 
Constitution and laws at the time in force. This is true by 
whomsoever it be exercised ; that is, whether by the sovereign 
body, acting as an organic whole, directly, — if that be possible, 
— or by functionaries, by itself charged with governmental duties. 

The possible exercise of sovereignty, on the other hand, as 
contradistinguished from the regular ex.exc\Be. of it, is that which, 
conforming to no rule, would be exhibited were the sovereign 
body to manifest its powers of sovereignty independently, or in 
violation, of an established rule, following, instead, its own ar- 
bitrary will. This exercise of sovereignty is irregular, and is to 
be characterized simply as such, or as revolutionary, according 
to the extent of the irregularity. 

But by the word possible, as applicable to this exercise of 
sovereignty, is meant possible only in fact, not legally possible. 
The possibility in fact of such an exercise of sovereignty, how- 
ever, is a circumstance of vast significance, under all forms of 
government — which it would be well if statesmen kept more 
constantly in mind. In the United States, doubtless, if there is 
anywhere in it lodged a truly sovereign power, there lies, out- 
side the narrow limits which bound the regular exercise of it, a 
wide space, in which the sovereign may expatiate in the exercise 



SOVEEEIGNTY, HOW REGULARLY EXERCISED. 59 

of all possible sovereign powers, as freely as in any government 
under the sun. In a word, then, to the sovereign all things are 
in fact possible ; all things may, according to circumstances, 
become rightful or justifiable ; though many things, which under 
the circumstances are rightful or justifiable on moral grounds, 
may be irregular or revolutionary. The wider field, moreover, 
is to be trodden only by the sovereign body itself, or under its 
immediate command: the narrower field — that of established 
rules of action — is that of government, which is but one phase 
of existence voluntarily assumed by the sovereign body, and 
which, however solemnly it may have bound itself to maintain 
it, it may, in fact, discontinue at will. 

§ 57. Applying these principles to the United States, with a 
view to ascertain whether sovereignty inheres in the people of 
the United States considered simply as a corporate unit, or only 
as discriminated into the subordinate groups, known as States, 
the problem seems to be of easy solution. 

Judging by the regular exercise of sovereign powers in the 
United States, — that is, by the Constitution of government now 
established, — sovereignty would seem, as a practical power, to 
reside in the people, as discriminated into the groups known as 
States. Of the numerous circumstances indicating this I shall 
mention but two. The first is, that by the Constitution of 1787 
the electoral function for the Union is performed, not by the 
electors acting as a single body, under regulations established by 
the legislature of the Union, the total result to be determined by 
a simple majority of all the votes cast, but by the electors dis- 
criminated into groups conterminous with the States, voting in 
accordance with State laws, the total result to be determined by 
grouping the several State majorities, sometimes giving them a 
weight proportionate to their respective numbers, and sometimes 
an equal weight, without regard to their numbers. 

The second circumstance is, that by the same Constitution, 
the power, par excellence a sovereign power, of amending that 
instrument, instead of being confided to the people or to a Con- 
vention of the people of the Union, acting directly, as a sover- 
eign unit, is given to them acting indirectly, either through Con- 
gress, or through a national Convention, called by Congress at 
the instance of the State legislatures, and that, by way of rec- 
ommendation merely, such action to be followed, in either 



60 CAPACITY IN WHICH THE STATES EXERCISE SOVEREIGNTY. 

case, by the ratification of the State legislatures or of Con- 
ventions called in the several States, as Congress may have 
determined. Thus the States seem to be inextricably inter- 
woven with the machinery provided for the exercise of the 
most fundamental right of sovereignty, that of forming the or- 
ganic law. But it is to be noted that it is with the regular 
exercise of that power that they are thus interwoven. The 
American nation, by which that system was established, can 
undo the work of 1787, if not in pursuance of its own pro- 
visions, then irregularly, being still, as before the formation of 
the Constitution, a sovereign political unit, the product of vital 
forces which had been active and accumulating long before it 
deemed it expedient to form that instrument. Although, in a 
moment of weakness, it saw fit to curtail its own powers, in 
relation especially to the sovereign act of amending the Con- 
titution,^ still, if in fact the nation should outgrow the system 
thus established, and should by a general movement institute a 
change which should not only violate the provisions of that in- 
strument, in reference to State equality in the Senate, but abolish 
the States entirely, it would be within its actual competence as 
a sovereign body so to do, though, from a constitutional point 
of view, it would be, perhaps, a revolutionary act. The point, 
in a word, to be kept in mind, is, that the present Constitution, 
determining the exercise of sovereign power by the servants of 
the sovereign, is not a finality for any body but those servants, — 
certainly not for the people of the United States, however they 
may have fettered themselves by the fundamental act of 1787. 
As the Constitution, as an objective fact, develops with the 
growth of the nation, the Constitution, as an instrument of 
evidence of that fact, must develop correspondingly. If by its 
terms it cannot do so, shall the nation be bound by it? In law, 
yes. As a matter of practical statesmanship, no. 

§ 58. Assuming, then, that by the present Constitution of the 
United States, sovereignty, so far as relates to its regular ex- 
ercise, inheres in the people of the United States, as discrim- 
inated into groups by States, a word is necessary as to the 
CAPACITY in which those groups act in performing the function 
indicated. 

1 See the concluding part of Article V. of the Constitution, relating to 
equality of representation of States in the United States Senate. 



CAPACITY IN WHICH THE STATES EXERCISE SOVEREIGNTY, 61 

"We have seen in a former section that the States partici- 
pate in the act of amending the fundamental law in a double 
capacity: first, as State governments — the State legislatures 
applying to Congress to call a Convention for proposing amend- 
ments, or ratifying such as have been proposed ; and, secondly, 
as subordinate peoples, together composing the people of the 
United States, — as, in case of Conventions meeting in the 
several States to ratify proposed amendments. In this last case, 
however, the two capacities would be blended, as the call of 
such Conventions would probably issue from the respective 
State legislatures, and not from Congress. 

The same distinctions run through the whole Constitution. 
Thus a large part of the legislative, and a corresponding part 
of the executive and judicial functions required in the United 
States, have been committed by the sovereign body of the Union, 
the nation, to the States, as governments organized in subordina- 
tion to the Union ; I refer to the powers of local legislation and 
administration, sometimes erroneously regarded as belonging 
originally, and as of sovereign right, to the States. Properly 
considered, these are a branch of the sovereign powers of the 
Union, of which, by the present Constitution, the exercise has 
been delegated to the State governments. 

In like manner, the State governments are charged with the 
exercise of sovereign powers, with reference to the Union, in 
the election of senators through the State legislatures ; ^ in the 
issuance of writs of election to fill vacancies in Congress, by the 
State executives ;^ in the appointment of officers for the national 
militia, given in general terms "to the States;" and in giving 
their consent to the building of forts and arsenals, and the erec- 
tion of new States, by Congress, within the jurisdiction of exist- 
ing States.^ 

On the other hand, in several particulars contained in the 
Constitution, the States, as subordinate peoples, without imme- 
diate reference to their organization into State governments, 
have been charged with the exercise of sovereign powers for the 
Union ; as in choosing the President of the United States, 
through electors chosen by such peoples directly,^ and in electing 

1 Art. I. sec. 3, cl. 1, Const. U. S. 

2 Art. I. sec. 2, cl. 4, Const. U. S. 

3 Art. I. sec. 8, cl. 17, and Art. IV. sec. 3, cl. 1, Const. U. S. 

4 Art. II. sec. 1, Const. U. S. 



62 . VIEW OF AUSTIN. 

the members of the national House of Representatives, a duty 
committed to " the people of the several States." ' 

§ 59. In all these cases, however, the circumstance already 
mentioned is to be noted, that the States, considered either as 
parts of the national people or as State governments, in no case 
act in either of those capacities purely and simply; the framers 
of the Constitution seeming carefully to have connected the ex- 
ercise of sovereign powers by them in one capacity with their 
exercise of them in the other capacity, as if to make them, as 
parts of the national people, checks upon themselves when act- 
ing as State governments. Without stopping to cite instances 
of this system of internal checks, I observe that the States, in 
both capacities, are, by the Constitution, subjected to checks in 
the form of direct constitutional prohibitions, which are external 
to themselves as States, being limitations upon their exercise of 
sovereign powers, imposed by the people of the United States.^ 
Admitting, then, that the powers of sovereignty, under the pres- 
ent Constitution, are exercisable only by the people as discrimi- 
nated into States, and, as such, acting in the two capacities of 
State peoples and State governments, the fact that such limita- 
tions have been imposed is a further and an incontestable proof 
that the States are not themselves in any capacity, either separ- 
ate or united, the sovereign power in the Union, but only the 
depositaries for the time being of such sovereign powers as the 
sovereign has chosen to have exercised. 

§ 60. The theory, nevertheless, that sovereignty inheres in the 
people of the United States, not simply, or as a political unit, but 
as discriminated into States, has the' sanction of high authority. 
Although I believe this to be an error, arising from not distin- 
guishing the sovereign body from the system of functionaries in 
whom is temporarily vested by the sovereign the exercise of sov- 
ereign powers, I shall give extracts from the writings of one or 
two publicists who hold the view indicated. 

Mr. John Austin, in his work, " The Province of Jurispru- 
dence Determined," contrasting what he calls supreme federal 
governments with permanent confederacies of supreme govern- 
ments, says of the government of the United States : — 

1 Art. I. sec. 2, cl. 1, Const. U. S. On the whole subject discussed in the 
foregoing sections, see Federalist^ No. 39. 
a'See Art. I. sees. 8, 9, and 10, Const. U. S. 



VIEW OF DR. BROWNSON. 63 

" The supreme government of the United States of America 
agrees (I believe) with the foregoing general description of a 
supreme federal government. I believe that the common gov- 
ernment, consisting of the Congress and the President of the 
United States, is merely a subject minister of the United States 
governments. I believe that none of the latter is properly sov- 
ereign or supreme, even in the state or political society of which 
it is the immediate chief. And lastly, I believe that the sover- 
eignty of each of the states, and also of the larger state arising 
from the Federal, Union, resides in the states' governments, as 
forming one aggregate body ; meaning by a state's government, 
not its ordinary legislature, but the body of its citizens which 
appoints its ordinary legislature, and which, the Union apart, is 
properly sovereign therein. If the several immediate chiefs of 
the several United States were respectively single individuals, 
or were respectively narrow oligarchies, the sovereignty of each 
of the states, and also of the larger state arising from the Fed- 
eral Union, would reside in those several individuals, or would 
reside in those several oligarchies, as forming a collective 
whole." ^ 

There is, perhaps, some ambiguity in this passage, as it is not 
clear whether, by the body of the citizens of a State " which ap- 
points its ordinary legislature," the author means the totality of 
its citizens, forming a corporate unit, which, " the union apart," 
virtually appoints the legislature, or the body of the electors, 
which immediately and formally appoints it. If the former was 
intended, his theory was clearly what I have supposed above ; 
if the latter, it was the wholly untenable one, that sovereignty 
in the United States inheres in the electors or voting people of 
the respective States, considered " as forming a collective whole," 
— a theory which has the sanction of so eminent an authority 
as Mr. Hurd.2 

§ 61. A similar view of the mode in which sovereignty inheres 
in the people of the United States has been lately propounded 
by Mr. Brownson, with his characteristic force and ingenuity, in 
his work, " The American Republic." Having located political 
sovereignty, in general, in the people, "not individually, but 
collectively, as civil and political society," he proceeds to deter- 

^ John Austin, The Province of Jurisprudence Determined, Vol. I. p. 222. 
2 Hurd, Law of Freedom and Bondage, Vol. I. § 343, note 2. 



64 TEEM SOVEREIGN AS APPLIED TO THE STATES. 

mine how it exists in the people of the United States. Com- 
menting upon the opening words of the preamble of the Federal 
Constitution, " We, the people of the United States," he says : 
" Who are this people ? How are they constituted, or what the 
mode and conditions of their political existence ? Are they the 
people of the States severally ? No ; for they call themselves 
the people of the United States. Are they a national people, 
really existing outside and independently of their organization 
into distinct and mutually independent States? No; for they 
define themselves to be the people of the United States. If they 
had considered themselves existing as States only, they would 
have, said, ' We, the States ; ' and if independently of State 
organization, they would have said, ' We, the people, do or- 
dain,' &c. 

" The key to the mystery," he continues, " is precisely in this 
appellation, United States, which is not the name of the coun- 
try, for its distinctive name is America, but a name expressive 
of its political organization. In it there are no sovereign people 
without States, and no States without union, or that are not 
united States. The term united is not part of a proper name, 
but is simply an adjective qualifying States, and has its full and 
proper sense. Hence, while the sovereignty is and must be in 
the States, it is in the States united, not in the States severally, 
precisely as we have found the sovereignty of the people is in 
the people collectively, or as society, not in the people individu- 
ally. The life is in the body, not in the members, though the 
body could not exist if it had no members; so the sovereignty is 
in the Union, not in the States severally ; but there could be no 
sovereign union without the States, for there is no union where 
there is nothing united.^ 

^ 62. In concluding this discussion of sovereignty in the 
United States, it should be stated that, wherever in the follow- 
ing pages the term sovereign is applied to the people of a State, 
as it frequently will be, in speaking of the submission of Con- 
stitutions, framed by State Conventions, to the people of such 
States, it will be used to signify the possession by such people of 
quasi sovereign rights, in subordination to the real sovereign, the 
American nation. Under the Constitution of the nation — com- 
prising the federal and all the State Constitutions — each State is 
1 The American Republic, pp. 220, 221. 



TERM SOVEREIGN AS APPLIED TO THE STATES. 65 

permitted by the sovereign to frame for its own people its local 
Constitution, subject always to the guaranty of the national gov- 
ernment. In performing that work, the people act in the same 
manner as if they had neither State nor federal relations, — as 
though the State were sovereign and independent. In truth, 
however, a State is neither. In passing upon a local Constitu- 
tion, the people of a State are performing a delegated function, 
— exercising, by permission, and in behalf of the people of the 
United States, a sovereign power belonging only to the latter. 
That this is the most characteristic, and by far the most valu- 
able of all the features of the national Constitution, is undeni- 
able, but that fact does not at all affect its intrinsic character 
as above explained. With a proper definition of " States 
Rights," then, every lover of his country and every friend of its 
liberties, must be a " States Rights man " : but that definition 
must be such as to leave a country to love, — a thing possible 
only when the States are regarded as expedients subordinate to 
the nation ; subservient, in all respects, to its interests ; and, 
therefore, if the nation so will, temporary. 



CHAPTER HI. 

§ 63. The function of the Constitution-al Convention being, 
as we have seen, to pa,rticipate in the framing or amending of 
Constitutions, before attempting to ascertain the extent of its 
powers in that regard, it is necessary to form an accurate con- 
ception of what a Constitution is. 

By the Constitution of a commonwealth is meant, primarily, 
its make-up as a political organism ; that special adjustment 
of instrumentalities, powers, and functions, by which its form 
and operation are determined. 

This is a Constitution, considered as an ohjective fact. 

Beside this, the term " Constitution " has a secondary mean- 
ing, w^hich is, perhaps, more common than the one given, 
involving equally the conception of a system of political in- 
strumentalities, powers, and functions, specially adjusted for the 
purposes of government; but conceived of, not as an objective 
fact, but as a systematic written statement of such a fact, in the 
shape of formulce addressed to the understanding. In other 
words, a Constitution, in this secondary sense, is the result of an 
attempt to represent in technical language some particular con- 
stitution, existing as an objective fact. This is a Constitution 
considered as an instrument of evidence}- 

1 Since this part of the text was written, I have been pleased to find that 
substantially the same distinction here noted, between Constitutions as ohjective 
facts and Constitutions as instruments of evidence, has been taken in two works 
lately published ; that of Mr. Hurd, On the Law of Freedom and Bondage, 
and that of Dr. Brownson, The American Republic. The latter author 
says : — 

" The Constitution of the United States is twofold, — written and unwritten, 
— the constitution of the people, and the constitution of the government. The 
written constitution is simply a law ordained by the nation or people instituting 
and organizing the government ; the unwritten constitution is the real or actual 
constitution of the people as a state or sovereign community, and constituting 
them such or such a state. It is providential, not made by the nation, but born 



CONSTITUTIONS AS THEY OUGHT TO BE. 67 

§ 64. A third variety of Constitutions, so-called, may be 
noted, but only to exclude them from the list of legitimate Con- 
stitutions, that is, Constitutions " as they ought to heP These 
must be carefully distinguished from Constitutions considered as 
objective facts. They are Constitutions framed in the closet, ac- 
cording to abstract ideas of moral perfection, for imaginary com- 
monwealths. Of this class are the instruments thrown off in 
such numbers by the constitution-mongers of France, during 
her great democratic revolutions, and those hardly more unsub- 
stantial ones framed by Plato, More, Bacon, and Harrington for 
their ideal republics. 

As contrasted with these, the Constitution considered as an 
objective fact, is that Constitution which has actually, under the 
operation of social and political forces, evolved itself in a State. 
This Constitution may differ much from that inscribed in the 
volume of the laws. Thus, there may have been wrought out 
fundamental changes in the structure of a government by the 
usurpations of its administrative officers, and acquiesced in by 
the sovereign society ; in which case, those changes would be- 
come a part of the Constitution as a fact. The usurpations, 
having this effect, might or might not have been intentional. 
The purchase of Louisiana, admitted by Mr. Jefferson, who ef- 
fected it, to have been an unconstitutional act, may be cited as 
an instance of an usurpation resulting in important constitu- 
tional modifications, which was committed intentionally, be- 
cause of its supposed great benefit to the country. It is the 
opinion of many lawyers, that State banks of issue are uncon- 
stitutional. Admitting that they are so, but that, when first 
authorized, they were believed to be within the scope of State 
legislative power, and conceding that they are now so firmly 
established as to be practically irrepealable, they would present 
an illustration of an unintended usurpation, ripening by long 
acquiescence into a change of the Constitution as a fact. Simi- 
lar changes might arise, in the course of the national progress, 
from the growth of opinion, or from some general but gradual 
organic movement of the society at large, of importance so 
fundamental that they mast be set down as modifications of the 

with it. The written constitutioa is made and ordained by the sovereign power, 
and presupposes that power as ah-eady existing and constituted." — The Ameri- 
can Republic, Tp. 218. 



68 AEE CONSTITUTIONS AS PACTS FOUNDED ON COMPACT? 

Constitution as a fact. The eradication of domestic slavery 
from a nation whose fundamental code in its letter permitted 
it, as a result of civil war, would be such a change. 

§ 65. I pass now to consider the nature and specific varieties 
of Constitutions of the first two kinds, that is, of Constitutions 
considered, — 

First, as objective facts ; and 

Secondly, as instruments of evidence of those facts. 

I. Adverting to the first of the proposed subjects of inquiry, 
what I have to say upon the nature of Constitutions considered 
as objective facts, will be confined to this central question : Are 
Constitutions founded upon compact ? 

When it is affirmed that a Constitution is founded upon com- 
pact, what is meant ? Obviously, either that, at the opening 
of its historical development, it became what it did by virtue of 
an actual agreement between the individuals then composing 
the state, to which agreement all subsequently born individuals 
became, from time to time, parties ; or, that while there was 
never, probably, an agreement between such individuals in fact, 
their relations to each other and to the state, and their conse- 
quent rights and duties, are what they would be, had there in 
fact been such an agreement ; in other words, that if there was 
no agreement in fact, one may be supposed, to account for facts 
not otherwise so easily explained. That is, the doctrine of com- 
pact, as the foundation of Constitutions, must be asserted either 
as a fact or as an hypothesis. Considered as a fact, it is suffi- 
cient to deny that a Constitution ever thus originated, in a proper 
sense of those terms. All Constitutions, and, of course, all gov- 
ernments, are growths, the products of social and political forces ; 
among these reckoning as well the traditions, and the physical, 
intellectual, and moral conditions of the society, as its relations 
to other political societies. It is doubtless true, that, whilst one 
effect of these forces is, in the domain of fact, to evolve the 
actual Constitution, another is, in the domain of opinion, to 
evolve what is called the consent of the governed. The two 
effects are, indeed, necessary concomitants, being the different 
results of the same causes operating in the diverse spheres spe- 
cified. But to say that the Constitution is based upon that con- 
sent is, in my view, as absurd as to attribute to the consent of 
its component particles the structure and functions of a plant. 



ARE CONSTITUTIONS AS FACTS POUNDED ON COMPACT ? 69 

Doubtless those particles acquiesce, and if they were sentient 
beings, with conscience and will, that acquiescence, without 
ceasing to be determined by natural laws and forces, might be 
denominated consent. So the acquiescence of great societies or 
races in the founding of governments and dynasties is only by 
a figure of speech to be called their consent ; it is rather resigna- 
tion to the action of forces which they have neither ability nor 
desire to countervail. The human race have always acquiesced 
in the revolution of the earth about the sun ; they have sat down 
to study its causes, and recognized with thankfulness its accru- 
ing advantages, no faction, so far as history shows, — the 
church, perhaps, in Galileo's time excepted, — ever even pro- 
testing against it ; but it does not follow, therefore, that the sys- 
tem of planetary motion, of which that revolution is a part, was 
founded on the consent of the earth or its inhabitants, or on a 
compact between them and the residue of the universe, 

§ 66. If, on the other hand, the doctrine that Constitutions, 
considered as facts, are founded upon compact, is put forth as 
an hypothesis merely, for purposes of illustration, and if its 
hypothetical character is kept constantly in the foreground, it 
may be viewed with more indulgence. The true office of an 
hypothesis is to provide a theory of causation adequate to ac- 
count for known facts, and yet without vouching for its absolute 
verity. It supposes the theory may be true. It also equally sup- 
poses it may be false, admitting readily, indeed, that the next 
fact discovered is nearly as likely to prove it false as true. But, 
whether in fact false or true, its usefulness for scientific purposes 
is the same. It serves as a lay figure, on which to exhibit to 
advantage in all their relations truths that are connected but ob- 
scure. But the danger is that that which is supposed will insen- 
sibly lose its hypothetical character and come to rank as a truth, 
and so be made the basis of reasoning to other truths as unsub- 
stantial as itself, but ignorantly, on account of the regularity of 
their deduction, accepted as undoubted. An instance of such a 
perversion of hypothesis into political axiom is seen in the his- 
tory of the dictum of the Roman jurisconsults, based on the 
fiction of a " Law of Nature," namely, that " all men are by 
nature equal ; " ^ which, revived by the French lawyers and by 

1 " Omnes homines nalurd cequnles sunt," the maxim of the Roman lawyers of 
the Antonine era. — Maine, Ancient Law, p. 89. 



70 AEE CONSTITUTIONS AS PACTS FOUNDED ON COMPACT ? 

Rousseau, passed from them, through Jefferson, into the Ameri- 
can Declaration of Independence. Mr. Maine, in his late pro- 
found work on " Ancient Law," has demonstrated, that in its 
inception, this doctrine was propounded merely to express the 
relations of the various peoples of Rome to one another, under 
an hypothetical law of nature. According to that supposed law, 
he says, " there was no difference in the contemplation of the 
Roman tribunals between citizen and foreigner, between free- 
man and slave, agnate and cognate." In those tribunals, then, 
the maxim as to the equality of all men meant, that in the eye 
of an imaginary law, derived from a supposed '•^ state of nature, ^^ 
all the inhabitants of Rome were equal. But, when taken up 
by the writers of later times, the doctrine that all men are by 
nature equal was used in a different sense, no longer bearing on 
merely civil, but also on political relations, namely, to signify 
that "all men ought to be equal." ^ Thus, what was originally a 
particular statement relative merely to an hypothetical code of 
civil law for the " Latin name," has come to be propounded as a 
political axiom of general application.^ 

§ 67. Conceding, then, that the doctrine of compact we are 
considering was propounded by its authors as an hypothesis 
merely, the danger was that men should come to look upon it as 
the expression of a fact, and thereupon spin from it conclusions 
that would be disastrous to society. Precisely such has been 
the fortune of this famous doctrine during the last hundred 
years. It has been received as a political axiom of general ap- 
plication and of absolute truthfulness. The fact, however, is, 
that it is a fallacy, or, at least, a fancy, which is dignified beyond 
its deserts when it is ranked as an hypothesis. History records 
no instance in which such a compact as the theory supposes was 
ever made ; and to imagine it, except for the purpose of exposi- 
tion or illustration, is as puerile as to trace the social union of a 
swarm of bees to a compact made at some imaginary congress, 
when each bee was in a " state of nature." The state of nature 
for the bee is that of union in the swarm ; and so the state of 
nature for mankind is that of association in political communi- 
ties, patriarchal or other. The rights and obligations growing 
out of the social state are as old as the absolute rights of indi- 

1 Maine, Ancient Law, pp. 70-92. 

2 Ibid. 



ARE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT? 71 

viduals. They are not the results of compact, but are parts of 
the system of human society, devised by the Creator " in the 
beginning." 

§ 68. It may be well in this place to complete our view of the 
theory of compact, as the basis of Constitutions, by consider- 
ing its application to the second class of Constitutions noted, 
namely, Constitutions considered as instruments of evidence. 
Of these, compacts, in a proper sense of the term, often form 
parts. To explain my meaning, it is necessary to consider how 
Constitutions of that kind arise. It will be seen in subsequent 
sections that some are merely collections of customs, stat- 
utes, and judicial decisions, published by unofficial persons, 
that is, persons without authority to pronounce definitively upon 
their letter or import; whilst others are simply statutes enacted 
by sovereign authority. Of the former kind, the English Con- 
stitution is an example, and of the latter, that of the United 
States. Now, when a people frame a Constitution in the sec- 
ond sense, or make a law or a treaty, which becomes a part of 
such a Constitution, what is the nature of their act ? It is a 
translating into appropriate legal language, and a formal regis- 
tering amongst the archives of the nation, stamped with the^a^ 
which marks the national acquiescence and gives to it authen- 
ticity, of the Constitution, or part of a Constitution, which has, in 
the progress of the nation and under the operation of all its 
social forces, actually evolved itself as a fact. 

Such a work evidently requires the highest powers, and is not 
likely to be executed with unanimity. Where the details of the 
Constitution as a fact are so apparent that the people are of one 
mind as to the legal formulcB requisite to embody them, there 
would be no compact; for, to produce that, there must be diver- 
gence of opinions, resulting finally in agreement. Where, how- 
ever, a divergence had arisen, but had finally ended in a com- 
promise, involving, not a conviction in the minds of one party 
that the views of its opponents were correct, but a surrender 
of its own, that results might be achieved, there would be a 
compact. Thus, to illustrate, there arose in the Federal Conven- 
tion two parties on this question : Given the absolute necessity of 
a closer union of the States, for their prosperity and safety, and 
the necessity, on the other hand, equally absolute, for the con- 
servation of our liberties, that the States should be retained as 



72 AEE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT? 

political organizations, what is the representation in the national 
Congress that is alone consistent with the attainment of both 
those objects ? One party said, it must be that of representa- 
tion proportioned to population. This party was composed of 
the large States. The other party, made up of the small States, 
replied : " No ; such a rule would place our fate in your hands ; 
you would combine and wipe out State lines, and thus bring 
shipwreck upon our liberties. The Constitution of the United 
States, as a fact, as it has evolved itself under the operation 
of existing forces, and for which we are seeking an adequate 
expression, involves State equality, because, without it the sys- 
tem cannot stand. The representation must be set down by us 
as equal from all the States, great and small." This divergence 
of opinion was radical, and, as is well known, came near frus- 
trating the efforts at a closer union. Happily, however, a com- 
promise was effected. A middle course was found, which fully 
satisfied neither, namely, to declare that the representation sought 
for — the unknown quantity in the problem — was, in the House, 
a representation proportioned to population, in the Senate, equal. 
This was a compact. But it is important to note, that it was a 
compact, to use a common phrase, but " skin deep." It was a 
compact which settled, not that the Constitution, as a fact, was 
as laid down in the instrument then framed, but that it should 
for the nonce be so declared and considered ; each party retain- 
ing still its opinion as to the fact, and the right, in the way 
pointed out in the instrument itself, to cause that opinion ulti- 
mately to prevail. Whether the formulcB agreed upon did in 
truth embody the then existing Constitution as an objective fact, 
is a wholly different question, which I do not decide.^ 

§ 69. It is evident that, if the views presented in the foregoing 
sections be sound, a very important question may arise, namely : 
admitting the possibility of discrepancies between the Constitu- 
tion of a state, as a fact, and its constitution as an instrument 
of evidence, which has the superior validity ? In answering this 
question, it would be easy — and to some minds the tempta- 
tion would be strong — to propound doctrines subversive of all 
regulated liberty. The reply seems reasonable, that the Consti- 
tution, as an objective fact, the Constitution, as it ought to be 
wTitten out, to harmonize with the results of existing social 
1 See Commonwealtli v. Aves, 18 Pick. R. 193, per Shaw, Ch. J. 



ARE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT ? 73 

forces, ought to prevail, rather than any empirical transcript of 
it made by fallible men, and therefore inadequate at the start, 
or become so by the progress of society. But such a doctrine 
would be anarchical — one according to which no government 
of laws could long exist. The Constitution as it has been sol- 
emnly declared to be, with as well its compacts as its bare tran- 
scriptions, must be the sole guide, as to all matters and persons 
within its proper cognizance. 

But, at this point, a distinction should be made. The people 
of a commonwealth sustain to its Constitution a double relation, 
— first, that of its enactors; and, secondly, that of citizens 
amenable to its provisions. In the first relation, they make up 
the political society of which it is the Constitution. In the sec- 
ond, they are simply individuals, being either private citizens or 
persons charged for the time being with public functions under 
the Constitution ; in both of which predicaments they are abso- 
lutely subject to every provision of the Constitution, to which, 
while it exists, there is for them nothing in the shape of law 
superior. But, for the people considered in the first relation, as 
the enactors of Constitutions, provisions of the written Constitu- 
tion not according with the Constitution as a fact, are in general 
of no binding force whatever : not only may the people, but, if 
they would insure peace with progress, they must by amend- 
ments cause the former to conform substantially to the latter. 
I say " in general," because two cases may be exceptions : first, 
that of compacts, of which the occasions — divergence of views 
or of interests, resulting in compromise — still subsist in sub- 
stance unchanged ; and, secondly, that of constitutional inter- 
dicts, couched in negative terms, and having practically the 
same effect as compacts. In both these cases the constitutional 
provisions referred to operate, through their effect on the subor- 
dinate agents, by whom alone the sovereign can act, as a limi- 
tation upon the sovereign itself; it cannot, without a violation 
of morals or of the fundamental law, or of both, disregard what 
it has, under such circumstances or in such terms, ordained and 
established. 

§ 70. II. Constitutions considered as facts, may be discrimi- 
nated, with reference to the participation of the citizens in the 
exercise of the powers granted by them, into several species. 

1. Of these, the first comprises those Constitutions in which a 



74 VAEIETIES OF CONSTITUTIONS AS FACTS. 

single citizen monopolizes the entire powers of the government. 
These are the Constitutions of what are called absolute mon- 
archies, or autocracies, and the peculiar arrangement of powers 
by which they are characterized is the result of usurpation on 
the part of the servants of the true sovereign, the state, followed 
by the acquiescence of the latter. 

2. The next species embraces Constitutions in which a few 
citizens, instead of one, monopolize all the powers of govern- 
ment. These are styled aristocracies, and the same remark 
respecting their origin is applicable, just made with reference to 
that of monarchies. The term " few," as denoting the number 
who participate in the functions of government, is, of course, 
indefinite, but it is intended to designate by that term a very 
small minority of the citizens forming generally a close corpo- 
ration, to which admission is practically denied. 

3. The third species is made up of Constitutions which recog- 
nize a single monarch, theoretically the fountain of honor and 
authority, but in which considerable numbers of the citizens, 
or certain favored classes of them, participate in the government 
by representation. Governments controlled by such Constitu- 
tions are called limited monarchies, a good example of which 
is that of England. 

4. The fourth species comprises Constitutions, in which, while 
there is no monarch, and the people are recognized as the foun- 
tain of all law and authority, a large proportion of the citizens, 
determined by the sovereign body, exercise the powers of gov- 
ernment by representation. Of this species are the Constitu- 
tion of the United States, and those of the several States of the 
Union. 

5. The last species I shall mention consists of Constitutions 
in which all the citizens participate, or may participate, in the 
government directly, without representation — as the Constitu- 
tions of some of the Swiss Cantons. This kind of Constitutions 
is obviously practicable only in states of small territorial extent. 

§ 71. Constitutions, considered in their evidentiary character, 
that is, as evidence of what some particular Constitutions are 
as objective facts, may be discriminated, first, with reference to 
the mode in which they originate, into two classes, namely : — 

1. Cumulative Constitutions. 

2. Enacted Constitutions. 



CUMULATIVE AND ENACTED CONSTITUTIONS. 75 

Secondly, with reference to their general characteristics as 
sources of evidence, into two others, closely allied to the former, 
nannely : — 

3. Unwritten Constitutions. 

4. Written Constitutions. 

§ 72. 1. By a cumulative Constitution, is meant one made up 
gradually of accumulated usages and common-law principles, 
decisions of the courts, spontaneous and enacted institutions, 
compacts and statutes, of fundamental importance or embody- 
ing principles of political magnitude.^ The leading idea in this 
variety is, that they are evolved gradually, as the exigencies of 
the national life require. Whenever a weak spot in the political 
fabric is discovered, the law or institution extemporised to sup- 
ply the defect becomes a part of the Constitution. Two things, 
consequently, are essential to their successful operation : first, 
an alert and well-instructed public opinion, prepared at a mo- 
ment's warning, to provide the constitutional device necessary 
to the exigency ; and, secondly, public servants trained to a 
thorough knowledge of the institutions intrusted to their man- 
agement, to a love and reverence for them, and with a dispo- 
sition to obey with equal alacrity its new and its old provisions. 
Of this peculiar kind of Constitutions, those of ancient Rome 
and of England are conspicuous examples. 

§ 73. 2. Enacted Constitutions, as the name implies, are such 
as are positive enactments, made commonly at one time, 
though sometimes at different times, by the appropriate leg- 
islative authority. From Constitutions of this kind, customs, 
compacts, decisions of courts and ordinary statutes, except to 
aid in construing doubtful clauses, are excluded. The Con- 
stitutions established in the United States, and such as have 
been modelled after them abroad, are examples of enacted Con- 
stitutions. 

§ 74. 3 and 4. The two remaining varieties of Constitutions, 
the written and unwritten, embrace respectively the same Con- 
stitutions as the two above described, but viewed in a different 
relation. In those they were considered with reference to their 
origin or mode of development ; in these they will be con- 
sidered with reference to their characteristic qualities as sources 
or instruments of evidence. When a Constitution is spoken of 
1 Adapted from Dr. Lieber, Civil Liberty^ p. 166, note 1. 



76 WRITTEN AND UNWRITTEN CONSTITUTIONS. 

as written or unwritten, those words are used in a sense analo- 
gous to that in which the terms lex scripta, and lex non scripta 
are employed in treatises on municipal law, referring, not to 
the present, but to the original character of the laws in question, 
as written or unwritten. It is well known that the common 
law, which is strictly lex non scripta, is embodied in writing as 
fully as the statute law, which is properly styled lex scripta ; 
but in its inceptive stages the case was different. Precisely 
the same distinction exists between written and unwritten 
Constitutions. But the principal analogy between the two great 
classes of laws thus characterized, the constitutional and the 
municipal, is in the rules of construction and the evidentiary 
effect of the written or scripta, on the one hand, and the un- 
written or non scripta, on the other. In illustrating this analogy, 
I shall confine my observations to the construction and effect, as 
evidence, of Constitutions. An unwritten Constitution is made 
up largely of customs and judicial decisions, the former more or 
less evanescent and intangible, since in a written form they 
exist only in the unofficial collections or commentaries of pub- 
licists and lawyers; and the latter composing a vast body of 
isolated cases, having no connecting bond but the slender thread 
of principle running through them, a thread often broken, some- 
times recurrent, and never to be estimated as a whole but by 
tracing it through its entire course in the thousand volumes of 
law reports. The result is, that what the custom or what the 
course of judicial decisions may be upon any point of funda- 
mental law, is a most complicated question, the answer to which 
can at best be but an inference from many disconnected facts. 

§ 75. Not so with written Constitutions. As I have said, 
customs, decisions of courts, and institutions growing up spon- 
taneously, have no place in them. Such Constitutions are stat- 
utes merely, covering the whole ground and, so far as the 
purpose of their framers is answered, precluding the possibility 
of construction. It is only when human skill in the expression 
of ideas is baffled, that a case can arise in which a court must 
pronounce what the Constitution is. The field thus provided for 
construction, though infinitely narrower than in unwritten Con- 
stitutions, is still ample, for a Constitution can only deal in gen- 
eralities, whereas its application to particular cases is precisely 
that which must daily be determined. The crowning difference 



WRITTEN AND UNWRITTEN CONSTITUTIONS. 77 

between the two species of Constitutions lies in this : that the 
duty of those who construe a written Constitution is merely, 
first, to ascertain the meaning of the general clause of it cover- 
ing the case ; and, secondly, to determine its application to the 
particular facts in question ; the duty, on the other hand, of 
those who construe an unwritten Constitution is, first, to enter 
upon an exhaustive search after the repositories or memorials in 
which the Constitution lies enshrined ; secondly, having gotten 
together these, to interpret them, and finally to settle by con- 
struction, if necessary, the application of their general pro- 
visions to the particular facts of the case. In other words, the 
scope of construction in a written Constitution is principally to 
ascertain what particular clauses of a determinate instrument 
mean ; whilst in an unwritten Constitution this inquiry must be 
prefaced by another still more difficult, as to the contents or 
tenor of the Constitution to be construed. In the former case, 
construction is confined — that is, it operates only upon the 
Constitution itself considered as an instrument which is al- 
ready determined ; in the latter, it is at large ; it first inquires 
what the terms of the law are and then proceeds to determine 
their meaning and application. 

§ 76. It is obvious, that out of the distinction just announced 
must grow important consequences. One of these is that un- 
written Constitutions are the playthings of judicial tribunals. 
They are flexible, because in the vast store-house of heteroge- 
neous matter, out of which their provisions are to be gathered, 
it is easy to find or not to find, that which one will. A prej- 
udice or a prepossession may readily give shape to the results 
of the most honest researches. So, the pressure of opinion, or of 
some great public necessity, may warp the judgment and lead 
the judicial mind to see what it is desirable should be seen. 
The same may doubtless happen to some extent in case of 
a \\T:itten Constitution. Doubtful clauses are fields in which 
passion or prejudice have play, but that is an evil inseparable 
from the nature of mankind. It is probable that written 
Constitutions reduce the power of judicial legislation by con- 
struction to its minimum. Here is the text ; what does it mean, 
taking its language, not in a strained sense, or diverso intuitu^ 
but in its ordinary signification at the time the instrument was 
indited ? What is the precise meaning intended by its authors ? 



78 ADVANTAGES OF WRITTEN CONSTITUTIONS. 

If judicial legislation is an evil, written Constitutions are clearly 
barriers in the way of its progress. How far they are advan- 
tageous on the whole is yet an unsettled question. A short 
statement of the comparative advantages and disadvantages of 
written and unwritten Constitutions, may be useful before leav- 
ing this branch of the subject. 

§^ 77. The advantages of written Constitutions are chiefly the 
following : — 

1. " When the political life of a people has been unpropitious 
for the foundation and growth of civil institutions, they are 
frequently the only possible starting point, and however slow, 
superficial, or deficient their action may be for a long time, stUl 
they form often the first available means to give civic dignity 
and political consciousness to a people, as well as the beginning 
of distinct delineation of power." ^ 2. They " form, in times 
of political apathy, if not too great, a passage, a bridge to pass 
over to better times." ^ Had the United States had an unwrit- 
ten Constitution during the last thirty years, would the battle 
with slavery have been fought with such persistency and success 
as we have witnessed, amid the general and increasing political 
ignorance and moral depravation of our people ? 3. " It gives a 
strong feeling of right, and a powerful impulse of action, to have 
the written law clearly on one's side, and though power, if it 
comes to the last, will disregard the written law as well as the 
customary, yet it must come to the last before it dares to pass 
the Rubicon, and to declare revolution." ^ 4. A written Consti- 
tution has the peculiar advantage of serving as a beacon to ap- 
prise the people when their rights and liberties are invaded or in 
danger.^ 5. Though written Constitutions may be violated in 
moments of passion or delusion, yet they furnish a text to 
which those who are watchful may again rally and recall the 
people ; they fix too for the people the principles of their political 
creed." ^ 

§ 78. Against these advantages must be set down certain 
drawbacks. 

1 Lieber, Polit. Ethics^ Pt. I. p. 394. 

2 Id. p. 395. 

3 Ibid. 

4 Tucker's Black. Com., Appendix to Vol. 1. p. 20. 

5 Jeiferson, in a letter to Dr. Priestley, Works, Vol. IV. p. 441. 



ADVANTAGES OF UNWRITTEN CONSTITUTIONS. 79 

1. Written Constitutions are liable, if not frequently amended, 
to become inadequate, — an evil inseparable from all attempts 
to define the powers of that which is in a state of transition or 
growth. 2. If facility exist for producing amendments, there is 
danger that constitutional changes may be made the objects of 
party warfare for party purposes. Changes might thus be forced 
into the written instrument before they had wrought themselves 
out in the Constitution as a fact. 3. Written Constitutions, 
whatever may be the facilities afforded for amending them, are 
too inflexible. In a nation of the magnitude of ours, the process 
of changing its Constitution is, at best, slow. In the mean time, 
its rulers may be tempted, under the influence of great national 
interests, or under the pressure of threatening calamities, to vio- 
late it; the danger of doing which is much greater where its 
provisions are generally understood, than under an unwritten 
Constitution, most of whose provisions are doubtful or unfa- 
miliar.^ 

§ 79. The advantages of unwritten Constitutions may be em- 
braced in a single proposition : they are likely at all times to be 
more correct expressions than any others of the corresponding 
'Constitutions, considered as objective facts. This follows from 
the process of their development. An unwritten Constitution is 
a record, by more or less competent observers, of fundamental 
changes which have occurred in the structure, principles, or 
guaranties of the Constitution considered as a fact. These 
changes are not made, but work themselves out under the opera- 
tion of determinate social and political forces. They do not 
evolve themselves per saltum, as in written Constitutions, but 
gradually and continuously. They who transcribe such a Con- 
stitution, merely watch, pen in hand, the play of the producing 
forces and note results as they are achieved. These results be- 
come parts of the Constitution as a fact, and the delineation of 

1 De Maistre thus sums up his opinion of written Constitutions : He main- 
tains, " 1. That the foundations of poHtical Constitutions exist in advance of all 
■written law. 2. That a Constitution is and can be but the development of a pre- 
existin<if unwritten law. 3. That that part of a Constitution which is most essen- 
tial, most intrinsically constitutional, in short, which is truly fundamental, never 
is, and without imperiling the whole political system, never can be, reduced to 
writing. 4. That the weakness of a Constitution, and consequently its liability 
to infraction, are directly proportioned to the multiplicity of its written articles." 
— Works, Tom. I. p. 12. 



80 MERITS OF THE TWO CONTRASTED. 

them, made by the observer, a part of the unwritten Constitution 
considered as an instrument of evidence. 

§ 80. It is obvious that if Constitutions, considered as facts, 
could develop into institutions as conspicuously and as perfectly 
as does the tree into fruit, the unwritten would be by far the 
most perfect of Constitutions, since then the text of it would im- 
mediately reflect actual fundamental changes. This, however, 
is not the fact. Excepting occasionally when a change is 
wrought out by a charter or by a statute, whose terms of course 
would be certain, unwritten Constitutions are determined by the 
growth of customs or of institutions, emerging often so imper- 
ceptibly as to elude common observation. And wherever there 
is obscurity or doubt, there are the conditions of conflict. 
Hence, though it is probable fundamental changes will be 
sooner registered in an unwritten Constitution, they are no more 
likely to have developed themselves peacefully than when they 
occur under a written Constitution. The truth is, that conflict 
is the condition of such changes everywhere. It is, however, 
less likely to be prolonged when, as soon as it is ended and the 
victory announced, the battle-cry of the victorious party is in- 
scribed in the Constitution, as a part thereof, than when it must 
still be embodied in it by a formal vote of the electors. 

§ 81. Considering the excellencies and defects of the two vari- 
eties of Constitutions, it is not easy to strike a balance between 
them. For a community whose political training has been car- 
ried to a high degree of perfection, in my view, an unwritten 
Constitution would, on the whole, be preferable. In that train- 
ing two elements would be of vital consequence to the safety of 
the system : 1. An accurate understanding of their political rights 
and duties, general among the citizens. 2. Sleepless vigilance to 
detect violations of the Constitution, and the utmost promptness 
and energy to resist and punish them. Without either of these 
elements, the usurpations of public functionaries must bring the 
system to speedy ruin. But for a community whose training has 
been imperfect, or which is subject to fits of political apathy 
alternating with those of intense zeal for reform, a written Con- 
stitution is doubtless the better one. While less flexible to the 
pressure of the national will, and therefore liable, in many of its 
provisions to become obsolete and oppressive, it is a formidable 
barrier against usurpation. Its provisions are so plain that he 



AMENDMENT OP CONSTITUTIONS. 81 

who transgresses them must generally do so intentionally, and 
that fact must be so apparent that usurpation would in most 
cases not be ventured upon, as likely to rouse a dangerous oppo- 
sition. The superiority of such a Constitution in the circum- 
stances supposed, follows from the fact that immobility, with its 
train of possible evils, is less dangerous than movement that is 
ill-judged or unconstitutional. 

§ 82. To render a written Constitution safe, however, under 
the most favorable conditions, it must embrace efficient ma- 
chinery for its own amendment, and that machinery must be so 
devised as neither to operate with too great facility, nor to re- 
quire to set it in motion an accumulation of force sufficient to 
explode the system. Two tendencies are observable in reference 
to the way in which a Constitution is regarded by the citizens 
of a state, both equally reprehensible : the tendency to idolize 
the letter of it, or, on the contrary, to under-estimate its real sa- 
credness, and so to degrade it to the level of ordinary laws. The 
latter leads to undue tampering with constitutional provisions 
for purposes of selfish or partisan ambition. The former begets 
that foolish kind of conservatism which clings to its worn-out 
garments until the body is ready to perish with cold. Mr. Jeffer- 
son insisted that no Constitution ought to go longer than twenty 
years without an opportunity being given to the citizens to 
amend it. This opinion he based upon the consideration that, 
by the European tables of mortality, it appeared that a genera- 
tion of men lasted, on an average, about that number of years, 
and that every succeeding generation, like its predecessor, had 
" a right to choose for itself the form of government it believed 
most promotive of its own happiness ; consequently, to accom- 
modate to the circumstances in which it finds itself, that received 
from its predecessors." ^ If to this there be appended the pro- 
visos, that amendments shall only then be attempted if they are 
pronounced necessary by the representatives of the people, and 
that they may be made at any time when so pronounced by a vote 
cast under circumstances making it probable that it reflects the 
settled will of the people, the opinion is doubtless a sound one. 

§ 83. But it is not enough that a Constitution provide a 
mode for effecting its own amendment ; it is necessary that 

1 Letter to Samuel Kercheval, of July 12, 1816. Jeflferson's Works, Vol. VII. 
pp. 9-17. 

6 



82 AMERICAN CONSTITUTIONS GENEEALLY WRITTEN. 

there should be developed a political conscience impelling to 
make amendments in the written Constitution when such as 
are really important have evolved themselves in the Consti- 
tution as a fact. Our courts can, in general, recognize no law 
as fundamental which has not been transcribed into the book of 
the Constitution. When great historical movements, like those 
which have lately convulsed the United States, have resulted in 
important political changes, that are so consummated and set- 
tled as to indicate a solid foundation in the actual Constitution, 
they should be immediately registered by the proper authority 
among the fundamental laws. Why embarrass the courts and 
fly in the face of destiny by refusing to recognize accomplished 
facts ? A point of honor should in such cases be cultivated, 
compelling the citizen to acquiesce in the decrees of the Al- 
mighty as written in events, similar to that which forces an 
English minister, on an adverse division upon an important 
measure, to resign his office. If political self-abnegation can- 
not, under written Constitutions, be developed to the extent in- 
dicated, it may be laid down as certain, that no commonwealth, 
governed by such a Constitution, can long survive.^ 

§ 84. In the United States, all Constitutions, considered in 
their evidentiary character, with two exceptions, have been writ- 
ten Constitutions. The peculiar circumstances of our political 
situation which occasioned this uniformity have been explained 
in the first chapter. And the exceptions alluded to are as sig- 
nificant of the principles which determined the rule as the cases 
strictly comprised within it. Connecticut and Rhode Island had 
unwritten Constitutions at the time of the Revolution, modeled 
in general after that of England, which continued in force until 
1818 and 1842 respectively. The democratic character of those 
Constitutions had so satisfied the people of those colonies, and 
their experiences under them of parliamentary oppression had 
been so slight, that there seemed no need of a change when the 
yoke of England was cast off. As their rulers had not been able 
to oppress them under the old order of things, it was believed they 
would be unable to do so under the new ; hence their polity was 
left unchanged. In the other colonies, the principle of express 

1 For a vigorous discussion of the article of the Federal Constitution pertain- 
ing to amendments, in which the position Is taken that that article is wholly in- 
adequate, see Fisher's Trial of the Constitution^ ch. i. 



DISTINCTION BETWEEN FUNDAMENTAL AND OEDINARY LAWS. 83 

limitation of powers was universally adopted. The result has 
been the formation of a hundred or more Constitutions, conform- 
ing strictly to the character of written Constitutions above pre- 
sented. Throughout all these, a family likeness is observable 
in every feature, internal and external. It will be the object of 
the remaining sections of this chapter to point out the varieties, 
the mutual relations, and the internal structure in general of 
these Constitutions, so far at least as the exposition may tend to 
aid us in determining the powers and duties of conventions^ 
whose function it is to frame them — the real purpose of this 
work. 

§ 85. Before proceeding to the task indicated, however, it may 
be useful to ascertain with precision the distinction between a 
Constitution or fundamental ordinance, and an ordinary municipal 
law. Both must be denominated laws, since they are equally 
" rules of action laid down or prescribed by a superior." ^ Ordi- 
nary laws are enactments and rules for the government of civil 
conduct, promulgated by the legislative authority of a state, or 
deduced from long-established usage. It is an important char- 
acteristic of such laws that they are tentatory, occasional, and 
in the nature of temporary expedients. Fundamental laws, on 
the other hand, in politics, are expressions of the sovereign will 
in relation to the structure of the government, the extent and 
distribution of its powers, the modes and principles of its oper- 
ation, and the apparatus of checks and balances proper to insure 
its integrity and continued existence. Fundamental laws are 
primary, being the commands of the sovereign establishing the 
governmental machine, and the most general rules for its oper- 
ation. Ordinary laws are secondary, being commands of the 
sovereign, having reference to the exigencies of time and place 
resulting from the ordinary working of the machine. Funda- 
mental laws precede ordinary laws in point of time, and em- 
brace the settled policy of the state. Ordinary laws, are the 
creatures of the sovereign, acting through a body of function- 
aries existing only by virtue of the fundamental laws and ex- 
press, as we have said, the expedient, or the right viewed as 
the expedient, under the varying circumstances of time and 
place. 

§ 86. It is perhaps possible best to illustrate the distinction 
1 Worcester's Dictionary, in verb. 



84 DISTINCTION BETWEEN FUNDAMENTAL AND OEDINARY LAWS. 

between fundamental and ordinary laws, by considering the case 
of a ship dispatched by its owner upon a distant voyage. 

It would obviously be in the power of the owner to prescribe 
in advance as well the particular duties of the captain and crew 
from day to day, as the general nature and purpose of the ad- 
Venture. But, how would a prudent owner manage in such a 
case ? He would content himself with dictating the termini 
and object of the voyage, the rank and pay of the various offi- 
cers, to which he might add general directions for the safety of 
the freight and the health and comfort of the crew. Beyond 
this, every thing relating to the voyage would be left to the offi- 
cers. They would make rules for particular exigencies, as they 
should arise, direct when to tack, when to furl and when to 
unfurl the sails to conform to the variations of the weather, and 
prescribe the particular course in which to steer from day to day, 
to avoid rocks and shoals, keeping constantly in view, neverthe- 
less, and, as far as practicable, acting in literal conformity to the 
owner's instructions. Now, such general directions relating to 
the objects of the voyage, the equipment of the ship, and the 
number and duties of those to whom her management should 
be intrusted, as it would be practicable to lay down in advance, 
as being not only thoroughly settled in the owner's mind, but as 
applicable under all circumstances of wind and weather, and in 
any probable condition of the ship, might be considered as fun- 
damental to the adventure, and as proper for a prudent owner 
to prescribe. All such regulations, on the other hand, and all 
such devices and arrangements as would show themselves to be 
necessary only from time to time as the voyage should progress 
to protect the ship, freight, or crew, in special emergencies, or to 
advance the general purposes of the voyage, would not be fun- 
damental, because not only would they be of less general conse- 
quence, but they would depend on circumstances that would be 
casual, and, therefore, not to be foreseen ; and hence they would 
properly be left to the discretion of the master on the spot. 

§ 87. The comparison of a commonwealth to a ship has been 
a favorite conception of poets and philosophers in all ages, but 
I doubt if in any respect the parallelism between them is so 
complete as in that specified above. I shall not occupy further 
space by pointing out minutely wherein that parallelism consists, 
but observe simply that the important points are, first, that fun- 



VAEIETIES OF CONSTITUTIONS IN THE UNITED STATES. 85 

damental laws are either structural, or expressive of the settled 
policy of the state ; and second, that they may, consequently, be, 
as they theoretically are, laid down in advance, for ages to come ; 
whilst, on the contrary, ordinary laws are merely temporary 
expedients or adjustments, and cannot be allowed to stiffen into 
constitutional provisions without extreme danger to the com- 
monwealth ; that, in other words, they have no place in a Con- 
stitution, and, therefore, as will be more fully shown in a subse- 
quent chapter, are not proper subjects for the action of bodies 
charged with framing Constitutions. 

§ 88. The Constitutions framed for the United States, and for 
its several component States, have all, save two, been written 
Constitutions ; and, in the two States whose Constitutions, as 
already explained, were originally unwritten, written Constitu- 
tions have lately been adopted. Of the whole number of Con- 
stitutions thus far framed in the United States, there have been 
two distinct varieties, namely, those framed for the general gov- 
ernment, and those framed for the several States. The charac- 
teristic differences between these varieties depend upon the 
extent of the grants of power to them respectively, and upon 
the modes in which the limits of the several grants are deter- 
mined. In the two Constitutions of the Union, the Articles of 
Confederation and the existing federal charter, the sum of the 
powers granted was comprised in several particular grants, and 
it was declared that the governments thereby established were 
confined to the exercise, the former, of powers " expressly/ dele- 
gatedj'^ and the latter, of powers " delegated" by that term 
designating, as it has been construed, express powers, and such 
as are necessary to carry into effect express powers. In these 
Constitutions, limitations of the grants of power are involved in 
the very terms in which they are made, the clear import of the 
instruments being, without an express declaration to that effect, 
that no power not affirmatively authorized by them can be exer- 
cised. In other words, the governments of the United States 
delineated in those Constitutions were governments of limited 
powers, but of powers ranking highest in the political scale, and 
within the scope of those powers, they were supreme. This is 
more particularly true of the Federal government than of the 
Confederation, though substantially so of that also. 

§ 89. To the State governments, on the contrary, were appor- 



86 THE FEDERAL CONSTITUTION. 

tioned the residuary powers, or most of them, not comprised in 
the federal grants. Thus, under the Confederation, according to 
the articles establishing it, each State retained every power, juris- 
diction, and right not expressly delegated to the United States ; 
that is, retained the sum total of the residuary powers. When 
the new Constitution, however, went into effect in 1789, the 
State governments were vested by the people of the Union with 
such of the residuary powers only as were not reserved to the 
latter ; ^ which reserved powers were, first, such sovereign powers 
as are not delegated to the ordinary departments of our govern- 
ments, as that of amendment ; and, secondly, such as, not being 
delegated to the Federal government, were prohibited to those of 
the States. Conceiving of the State governments, as we must, 
whatever the historical fact may be, as erected subsequently to 
that of the Union, they took all such powers as the people had 
to give except where the contrary was expressed or from the 
nature of the case implied. In other words, the State govern- 
ments were made governments of general powers, except when 
limited by the principles of morality or by the terms of the 
Federal Constitution. 

§ 90. The Federal Constitution being designed particularly to 
delineate the structure and powers of the Federal government, it 
touches upon those of the States only so far as they are related 
to that of the Union, and that with a view to prevent collisions. 
It therefore deals in this respect only in prohibitions to the States. 
The State constitutions, on the other hand, contain affirmative 
grants of power, and the mode of making them is to give to 
their governments powers, as of legislation, in general terms, and 
afterwards to limit those powers, if deemed desirable, by express 
provisions. Within the general domain allotted to the States, 
then, whatever any government can of right do, a State govern- 
ment can do. The government of the Union, on the other hand, 
though permitted a discretion as to modes of carrying into effect 
its granted powers, can do only what it is affirmatively author- 
ized to do — finding itself hedged in from the general mass 
of governmental powers, while those of the States are free to 

^ The words of the 1 0th amendment are : " The powers not delegated to the 
United States by the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people," — not to the people of the States, 
but to the people of the Union, who make the grant. 



STATE CONSTITUTIONS PAET OF CONSTITUTION OF UNITED STATES. 87 

expatiate at large, save where powers are hedged in from 
them. 

§ 91. These peculiarities of structure and function give rise 
to special rules of construction, depending on the differences 
mentioned. Thus, although within the sphere of its acknowl- 
edged powers, the general government is entitled to all liberal 
intendments, still, in determining that sphere, it is a presumption 
of law that a power does not belong to it, unless it be expressly 
granted, or be necessary, in a legal sense, to carry into effect 
some power expressly granted. This follows from the fact that 
it is a government of enumerated powers. Within the sphere 
of their powers, on the other hand, while the States are entitled 
to liberal intendments and to complete dominion, save where 
some of their powers are concurrent with those of the govern- 
ment of the Union, the presumption, in determining that sphere, 
is, that a power belongs to them if the contrary do not appear 
by a fair construction of their own Constitutions and that of the 
United States. This results from the fact that they are vested 
with all the powers not granted to the general government nor 
reserved to the people. 

§ 92. And here I may remark that the Constitution of the 
United States is a part of the Constitution of each State, whether 
referred to in it or not, and that the Constitutions of all the States 
form a part of the Constitution of the United States. An aggre- 
gation of all these constitutional instruments would be precisely 
the same in principle as a single Constitution, which, framed by 
the people of the Union, should define the powers of the general 
government, and then by specific provisions erect the separate 
governments of the States, with all their existing attributions and 
limitations of power. There is not a particle of question that 
the people of the United States could have thus framed their 
Constitution, had it been thought advisable, or that they could 
still — whether regularly or not is another question — melt the 
thirty odd Constitutions into a single one. To do the latter, 
undoubtedly they must first recall the power, conceded by the 
existing Constitution to the people of the several States, to frame, 
each in a quasi sovereign capacity, its own Constitution. But 
this, if they are the sovereign, they unquestionably have, if not 
the legal competence, at least the physical ability to do ; or they 



88 EELATIVE RANK OF STATE AND FEDERAL CONSTITUTIONS. 

may even, as we have seen, under like conditions, abolish the 
States, as distinct political organizations.^ 

§ 93. It follows from the principles above announced, regu- 
lating the distribution of powers to the Federal and State gov- 
ernments, that they are both really governments of limited 
jurisdiction ; and that they are equally required to confine 
themselves to the exercise of granted powers. Hence it would 
seem to follow that they are equal to each other. If it were 
objected to this conclusion, that the rules of construction just 
explained indicate a superiority of the powers appropriated to 
the States, in point of breadth or scope, it may be replied, that, 
while that is true, those powers are of a grade far less exalted 
than those apportioned to the general government. On the 
whole, laying out of view all positive provisions subordinating 
either to the other, the two systems of government. State and 
Federal, save, perhaps, in notoriety or eclat abroad, must be pro- 
nounced equal. But, when reference is made to the Federal 
Constitution, it is found that a subordination is established by 
positive regulation. Article VI. declares that " this Constitution 
and the laws made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, shall 
be the supreme law of the land;" to which is added a provision 
that all legislative, executive, and judicial officers of both Federal 
and State governments " shall be bound by oath or affirmation 
to support this Constitution." From these clauses, it is evident 
the government of the Union is made, in some of its operations, 
to be supreme over those of the States. As each of the two is 
of course absolute within the field appropriated to itself, the 
supremacy referred to must relate to the exercise of powers not 
recognized as absolutely belonging to either, but such as are 
denominated concurrent, or as lie on the boundary between the 
two, and respecting which there may be doubts to which gov- 
ernment they belong. Thus, it would be wrong to say that the 
Federal government is supreme over those of the States in the 
matter of declaring war, for that power belongs exclusively to 
the general government. So it would be improper to say of a 
State that it is supreme over the general government, in the exer- 
cise of a power to which the latter can make no pretence, but 
1 See ante, §§ 56-58. 



STATE AND FEDERAL CONSTITUTIONS SHOULD BE KEPT DISTINCT. 89 

which certainly belongs to the former.^ Supreme implies a 
comparison of power, and in these cases there could be no 
comparison, because one has all the power and the other has 
none. 

§ 94. It is, therefore, only on those points where the regula- 
tions of the two governments, in the shape of State laws or 
Constitutions on the one hand, and the Constitution, laws, or 
treaties of the Union, on the other, come in conflict, that the 
conditions of supremacy can exist. If a power is concurrent 
in the two, its exercise by the States must be subordinated to its 
exercise by the general government, where both cannot exercise 
it fully without collision. So, where a power may fairly be 
claimed to belong to both jurisdictions, if it be asserted by the 
general government, it becomes pro tanto, on account of its 
supremacy, rightful to it alone. That is the supremacy meant 
by the constitutional provision. As the authors of the " Feder- 
alist" have shown, it expresses but the condition on which alone 
a complex system of government by means of distinct and yet 
not wholly independent political organizations, like ours, can 
exist. Either the States must be subordinated to the Union, or 
the Union must be subordinated to the States ; in which latter 
case, as they well observed, " the world would have seen for the 
first time a system of government founded on an inversion of 
the fundamental principles of all government ; it would have 
seen the authority of the whole society everywhere subordinate 
to the authority of the parts ; it would have seen a monster, in 
which the head was under the direction of the members." ^ 

§ 95. While considering the relations of the two varieties of 
Constitutions in the United States, namely, that of the Union 
and those of the States, it may be well to remark, that, although 
they together form the Constitution of the Union, yet, as in the- 
ory their spheres of operation are distinct, so, in practice, they 
should be kept disconnected in respect of the rights and duties 
apportioned to each. They ought not, in other words, to make 
themselves ancillary to each other's operations. This remark is 
applicable more particularly to the Constitutions of the States in 

1 See Rutherforth's definition of the word " supreme " as distinguished from 
the word "sovereign," ante, § 18, note. 

•^ Federalist, No. 44, by Madison. See, also, 2 Peters' R. 449 ; 4 Wheaton'a 
R. 122. 



90 OPINION OF MR. WEBSTER. 

relation to that of the United States. Thus, as the right to coin 
money is given exclusively to the general government, counter- 
feiting the national coin is properly, as such, an offence only 
against the United States, and ought to be punished by it alone. 
For a State, either in its Constitution or laws, to make provision 
for punishing it, would be inexpedient, if not a breach of con- 
stitutional duty. If the governments founded by the people of 
the United States, and charged with distinct and independent 
functions, are unable to sustain themselves without extra-con- 
stitutional aid from each other, that would be a reason for 
applying to the original fountain of authority for an increase of 
their powers, not for exceeding their respective jurisdictions, with 
a view to effect what can only be properly done by the people 
themselves. Such an assumption of power would be for our 
legislative bodies to make, not to administer, the fundamental 
laws. 

This idea was admirably enforced by Mr. Webster in the 
Massachusetts Convention of 1820. He said : It was inexpe- 
dient to connect " the State Constitution with provisions of the 
National Constitution. He thought it tended to no good conse- 
quence to undertake to regulate or enforce rights and duties 
arising under the general government, by other means than the 
powers of that government itself. He would wish that the Con- 
stitution of the State should have as little connection with the 
Constitution of the United States as possible. Some of the 
States have sometimes endeavored to come in aid of the general 
government, and to enforce its laws, by their own laws. State 
statutes had been passed to compel compliance with statutes of 
Congress, and imposing penalties for transgressing those statutes. 
This had been found very embarrassing, and, as he thought, 
mischievous, because its tendency was to mix up the two gov- 
ernments, and to destroy the real essential distinction which 
exists between them. The true constitutional, harmonious move- 
ment of the two governments was as much interrupted by their 
alliance as by their hostility. They were ordained to move in 
different spheres, and when they came together, be it for the pur- 
pose of mutual harm or mutual help, the system is deranged. 
Whatsoever was enjoined on the legislature by the Constitution 
of the United States, the legislature was bound to perform ; and 
he thought it would not be well by a provision of this Constitu- 



BILLS OF RIGHTS. 91 

tion to regulate the mode in which the legislature should exer- 
cise a power conferred on it by another Constitution." ^ 

§ 96. I pass now to consider briefly the internal structure of 
written Constitutions, as they exist in the United States. 

The American Constitutions commonly consist of three dis- 
tinct parts : 1. The Bill of Rights. 2. The Frame of Government. 
3. The Schedule. Of these, the first two are generally present, 
though often blended together, and not in separate parts. The 
third, especially in the earlier Constitutions, is not always found. 

1. A Bill of Rights consists of solemn declarations of abstract 
principles, relating to the origin, ground, and purposes of govern- 
ment, and practical injunctions and prohibitions, promulgated 
with a view to its safe and equitable administration, digested 
out of the experience of the free peoples of England and Amer- 
ica during six hundred years of struggle for constitutional lib- 
erty, and intended as at once a guide and a limitation to the 
government in the exercise of power. I call the principles em- 
bodied in a Bill of Rights abstract, but only in deference to the 
common forms of speech, which thus characterize whatever is 
viewed as disconnected from the circumstances of time and 
place. Properly considered, however, those principles are the 
most concrete of all, as being such, not simply under certain 
conditions, but irrespective of all conditions. 

In the progress of English liberty during the period men- 
tioned, there have been taken these cardinal steps : 1. The 
Magna Charta, with its thirty confirmations by the Plantagenets 
and Tudors ; 2. The Petition of Right, addressed by the Parlia- 
ment to the second of the Stuarts ; 3. The Declaration of Right, 
made by the Convention Parliament on the restoration of Charles 
II. ; 4. The Habeas Corpus Act, passed in the thirty-first year of 
his reign ; and, 5. The Act of Settlement by which the crown 
was settled upon William and Mary in 1689, upon terms and 
conditions imposed by a second Convention Parliament, being 
the crowning stone in the arch of English freedom. The liber- 
ties wrought out or secured by these famous Acts, were as much 

1 Deb. Mass. Conv., 1820, p. 112. It has even been made a question whether 
a State Constitution ought to provide for taking an oath to support the Constitu- 
tion of the United States. See Deb. Penn. Conv., 1837, Vol. I. pp. 195-215. 
See, also, on the general question discussed in the text, Deb. Ohio Conv., 1850, 
pp. 233-236. 



92 , BILLS OF EIGHTS. 

those of English freemen living in America as of those dwelling 
in England. They were perhaps even more fondly cherished by 
the former than by the latter, since circumstances taught them 
more clearly their great value, and the precarious tenure by 
which they were held. Accordingly, in all the public papers 
emitted by the colonies during their struggle with England, they 
grounded themselves distinctly on these great constitutional acts. 
Indeed, it is now admitted by the political writers of England, 
that it was our fathers alone who held aloft the liberties of Eng- 
land for Englishmen themselves in that struggle, and that the 
triumph of the crown would probably have been the downfall 
of the entire Constitution, built up with such infinite toil and 
blood.i 

§ 97. When it became apparent, accordingly, in the course 
of our Revolutionary struggle, that independence was inev- 
itable, and the colonies came to provide regular governments 
based on the authority of the people, they sought to erect at the 
same time a system of guaranties of their old-time liberties. 
To this end, in imitation of their ancestors, they engraved the 
maxims and principles forming the most valued portions of 
those acts — all of them, indeed, that were deemed applicable to 
their condition and circumstances — upon the front of their con- 
stitutional charters, as if for a perpetual caveat to their rulers. 
To realize the great value of these principles, I have but to 
refer to a few of the most important and well known of them. 
They were : That no freeman ought to be taken, imprisoned, or 
disseized of his freehold, liberties, or privileges, or outlawed or 
exiled, or in any manner destroyed or deprived of his life, liberty, 
or property but by the law of the land : That the people ought 
not to be taxed, or made subject to the payment of any impost 
or duty, without the consent of themselves, or their representa- 
tives in General Assembly, freely given : That no freeman 
should be convicted of any crime but by the unanimous ver- 
dict of a jury of good and lawful men, in open court, as there- 
tofore used : That excessive bail should not be required, nor 
excessive fines imposed, nor cruel or unusual punishments in- 
flicted: That the freedom of the press was one of the great 
bulwarks of liberty, and therefore ought never to be restrained : 
That for vedress of grievances, and for amending and strength- 

1 May's Const Hist, of England, Vol. II. pp. 28-30. 



BILLS OP RIGHTS. 93 

ening the laws, elections ought to be often held : That per- 
petuities and monopolies were contrary to the genius of a free 
state, and ought not to be allowed. To these were added pro- 
hibitions against general warrants, standing armies, ex post facto 
laws, the suspension of laws or the granting of hereditary emol- 
uments or privileges, and injunctions designed to secure the 
privilege of the writ of Habeas Corpus, the right of petition and 
of freely assembling, the freedom of worship and of the press, 
and the establishment of a militia for the public defence. 

§ 98. As is generally the case with constitutional provisions, 
these principles are not couched in the technical language of 
laws, nor are they coupled with sanctions. But it is, neverthe- 
less, impossible to overstate their importance as guides to the 
departments of government in the exercise of their functions.^ 
From the nature of the State governments, this is true especially 
of them. To a government like the Federal, whose powers are 
such only as have been expressly granted, or as are necessary to 
carry into effect such as are expressly granted, the range for 
aberrations from constitutional paths, and therefore the need of 
cautionary or restrictive maxims, are much less than in govern- 
ments constructed like those of the States. Accordingly there 
was no Bill of Rights in the Federal Constitution as originally 
framed, nor properly afterwards, though the amendments carried 
soon after its establishment consisted almost exclusively of prin- 
ciples usually embodied in Bills of Rights. The reason for en- 
acting these amendments was, that the people of the United 
States were not content to rest their liberties upon any con- 
stitutional inability of the Federal government to infringe them. 
Such a security was a negative one, at best, and subject always 
to be neutralized by construction in the wide field of incidental 
powers. They insisted upon positive landmarks, and not only 
that, but upon the erection of such a barrier of principles and 
asserted rights as should deter any but the intentional usurper 
from passing the line of permitted powers. Without a tacit 
understanding that such a barrier should be provided, it is 
beyond question that the system would not have been ratified. 
The case was different with regard to the State Constitutions. 
They contained grants of power so extensive and so undefined, 
that the propriety of prefacing them by declarations of rights 
1 Hamilton v. St. Louis County Court, 15 Mo. R. 1, (23). 



94 FRAME OF GOVERNMENT. 

was never denied or even doubted ; and, as we have seen, 
though there have been exceptions, in general all Constitutions 
of that class have contained Bills of Rights. 

§ 99. The chief practical advantage of Bills of Rights, as 
above intimated, is that they furnish a guide to the depart- 
ments of the government in the exercise of their powers and 
duties in cases of doubt. They are for them what prudential 
maxims resulting from individual experience are for men in 
the ordinary concerns of life. But the experience from which 
the former are drawn is that of society, accumulated in the 
course of many centuries, and so, not likely to be that also 
of the individuals who administer the government, nor to be 
known to them unless specially inculcated in some conspicuous 
manner. It is upon the determinations of courts of justice that 
they have the most direct and beneficial effect. In questions 
of constitutional power or duty, in their bearing upon private 
rights, they are an invaluable guide, and our books of reports 
are filled with cases, the decisions of which turned upon the 
principles embodied in them. These principles, indeed, may 
be distinguished from the provisions of that part of the Con- 
stitution denominated the Frame of Government, as embracing, 
the former, guaranties for private rights, and the latter provisions 
relating to the policy of the State and to its political power and 
organization.-^ It being impossible in general language to lay 
down rules for the determination of particular cases, our courts 
would, on very many questions of construction, be wholly afloat, 
without the fixed principles of public policy and private right 
laid down in our Bills of Rights. 

§ 100. 2. The Frame of Government is that part of a written 
Constitution in which are described the structure and functions 
of the government ; that is, the distribution of political power, 
the particular agencies which are to wield it, the extent and 
duration of their authority, their emoluments, modes of appoint- 
ment or election, and the apparatus designed for amending or 
reproducing the system. Though in general all official persons 
and duties are delineated in this part of the Constitution, there 
are some exceptions, as in case of sheriffs, whose election merely 
is regulated, without specifying their duties or powers. They 
being officers well known at common law, a description of those 
1 Sedgwick on Stat, and Const. Law, pp. 475-6. 



THE SCHEDULE. 95 

particulars is deemed unnecessary, as being involved, to the com- 
mon apprehension, in the name of the office. The same is true 
of some other functionaries, as coroners, the higher military offi- 
cers, judges of the courts, and others. 

§ 101. In the Frame of Government are often, especially in the 
later Constitutions, included also positive provisions relating 
rather to the general policy of the State than to its political 
power or organization. Thus, many contain clauses designed to 
promote education, to encourage charitable institutions, to deter- 
mine the status of the citizens of the State, as slave or free, or to 
regulate corporate rights, as of banks or of railroad companies, 
or the privileges of particular classes of citizens, such as home- 
stead exemption, rights of married women, and the like. Indeed, 
as Constitutions embody settled policy, as well as the general 
features of the political organization, so fast as measures of pol- 
icy become really settled, that is, removed from the arena of 
party conffict, they are commonly enshrined in the Constitution, 
so that every generation, in communities like ours open to prog- 
ress, witnesses an extension of these provisions in our funda- 
mental charters. Beside these provisions. State Constitutions 
usually contain others defining the boundaries of the territory 
claimed as within their jurisdiction ; and, in close relation thereto, 
announcing the State policy with reference to the management 
and disposition of the public domain, or to internal improve- 
ments. 

§ 102. 3. The Schedule is that part of a written Constitution 
in which are comprised provisions deemed necessary — 1, to ascer- 
tain the will of the people with respect to the adoption of the 
instrument, matured by a Convention, as the Constitution of the 
State ; 2, to effect, without inconvenience or embarrassment, the 
transition from the old to the new order of things, and to save 
rights, acquired under existing laws, from lapsing by their re- 
peal ; 3, to set up and put in operation the institutions and 
agencies described in the Constitution, so far as not already in 
operation. These provisions are mostly temporary in purpose 
and effect ; and although they are, some of them, of a character 
more or less fundamental, they seem incongruous with the per- 
manent provisions of the Constitution, properly so called, and 
with the Bill of Rights. Beside these, which are the usual and 



96 THE SCHEDULE. 

proper contents of a Schedule, are sometimes found others, whose 
true place is in the Frame of Government, or whose character 
is such that they cannot rightfully find any place in a Con- 
stitution. Of the former, sections relating to subjects treated of 
in the body of the instrument, but bearing upon points which 
have apparently been forgotten, or which are mere after-thoughts, 
are instances. It is, perhaps, rather a sense of logical complete- 
ness and order than substantial propriety which is offended by 
such provisions ; but if a Schedule is a proper subdivision of a 
Constitution, it should be, not in the nature of a labor-saving 
postscript, made at the expense of clearness and finish, but of an 
appendix, in which to gather provisions of a temporary and mis- 
cellaneous character, related to the instrument in the main only 
as subservient to its general objects. Among provisions which 
ought to find no place in a Constitution at all, but which are, 
nevertheless, occasionally placed in a Schedule, may be men- 
tioned laws or ordinances relating to the submission of the Con- 
stitution to the people, to take effect at once, in cases where 
power to make such laws or ordinances has been expressly with- 
held by the legislature calling the Convention, or where different 
directions have already been given to that end by the legislature 
itself, and, perhaps, where the legislature has been altogether 
silent on the subject of submission. The objection to such pro- 
/ visions is, that they are exercises of a legislative discretion not 
I belonging to a Convention ; and as, from the nature of the case, 
I the action of such a body, in placing them in the Schedule as rules 
I of conduct, cannot be revised, but is definitive, it is an excess 

iof authority to assume to enact them. Whether or not it might 
be allowable to make such provisions in the case last supposed, 
'. where the legislature has been silent on the subject of submis- 
sion, or of the time and mode in which it shall be made, is a 
fair subject for argument, which will be considered in a subse- 
quent chapter. 

§ 103. It should be noted that the Schedule did not make its 
appearance until after the first batch of Constitutions, including 
those of the Union, had been framed and put in operation. The 
first Constitutions in which it was used were those of South Car- 
olina and Pennsylvania, framed in 1790. Of the Constitutions 
now in force, only about two in three have them, though in a 



THE SCHEDULE. 97 

few instances a separate article containing similar provisions is 
embraced in the Constitution, without special designation, or 
under the title of General Provisions. 

Before leaving the subject of Constitutions, it is proper to ob- 
serve, that, wherever in this work the term " Constitution " is 
used, a written Constitution will be intended, unless the con- 
trary be indicated. 



CHAPTER IV. 

§ 104. Having, in the two preceding chapters, considered the 
doctrine of sovereignty, by which are mainly to be determined 
the powers of the Constitutional Convention, and defined what is 
meant by a Constitution, to frame which is the business of that 
body, I pass now to a series of inquiries having for their pur- 
pose to determine the requisites to the legitimacy of Constitu- 
tional Conventions, namely, first. What is the proper mode of 
initiating or calling a Convention? and, secondly, By whom 
should Conventions be elected ? 

These questions will form the subject of the present chapter, 
and will be considered from two separate points of view; 1, 
from that of theoretical principles; and, 2, from that of his- 
'torical precedents. 

§ 105. Before entering upon the wide field thus brought to 
view, it will be useful to ascertain the import of two terms, 
which will be very frequently used in the course of the discus- 
sion, namely, legitimacy and revolution, with their derivatives. 

The primary signification of the term legitimacy is accordance 
with the law, and it is most commonly employed with reference 
to the birth of children, to characterize it as lawful. In European 
governments, sovereignty being generally ascribed to the reigning 
monarch, from whom it descends to his offspring, according to 
certain rules, the legitimacy of a government follows from the 
personal legitimacy of the occupant of the throne, and vice 
versa; hence the term has there come to bear very commonly a 
merely political signification to characterize governments deemed 
to be regular and lawful, because, in the devolution of the rights 
of sovereignty from one incumbent of the throne to another, the 
established rules of legitimate succession have been observed. 

§ 106. To the legitimacy of a prince of the blood, it is essen- 
tial that he should be the offspring of the reigning monarch and 
his wife, begotten and born in lawful wedlock and during their 
joint occupancy of the throne. This rule, though apparently 



LEGITIMACY. 99 

arbitrary, is based on the experienced necessities of state for 
many ages in the European monarchies ; and, if exceptions to it 
have occurred, they have been rather acquiesced in than com- 
mended, and that from the same considerations of expediency 
that gave rise to the rule. To render a government legitimate, 
then, the rule requires the exclusion from the succession of all 
persons not the offspring of the royal pair ; the exclusion of all 
the issue of them or either of them begotten, or conceived, out 
of the sovereign condition, or in a morganatic union of sovereign 
and subject ; and, especially, of their bastard issue. To realize 
the importance of this rule, one needs but to call to mind the 
wars of succession that devastated the European monarchies, be- 
fore it was established or because its application was disputed. 

§ 107. Now, with the exception of royal titles and the physical 
circumstances of marriage and birth of children, which give a 
local coloring to the doctrine of legitimacy in Europe, it is ap- 
plicable, in similar terms and for the same reasons, in the United 
States. It is true here, as there, that, to be lawful or legitimate, 
successive forms of government must be the offspring, regularly 
and lav^^fully begotten, the later of the earlier. They must be 
developed, one out of the other, after the order of Nature in the 
genesis and growth of her organic products. A system of gov- 
ernment, in other words, having been established, it must itself 
govern, as well in the matter of reproducing or repairing itself as 
in that of protecting itself and its subordinate members from the 
operation of harmful agencies without. A government, once 
founded, is the people, as organized for the attainment of the 
ends of government. Neither a part nor all of that people, in 
their individual capacity, or acting as a dissociated, non-organized 
mass, are legally competent to change their political structure. 
If that is to be done at all, consistently with the integrity of the 
government, or with the safety or happiness of the citizens, it 
must be done through the people themselves, as organized for the 
purposes of government. In a word, it is a right of the governed 
to know where to look for lawful successors to the institutions 
and magistrates under which they now live — a thing impos- 
sible except when the succession takes place according to law. 

The rules and legal principles by which this right is secured 
and rendered effectual, limit and explain the doctrine of legiti- 
macy under our system of government. 

§ 108. To determine whether an institution or a public body, 



1 



100 REVOLUTION. 

claiming to exercise any of the powers of sovereignty, is legiti- 
mate, in a political sense, it is necessary to ask two questions : 

1. Has it, in its inception, the stamp of legality — of con- 
formity to the law of the land ? 

2. Do the law itself and the proceedings in which it originated 
conform to the fundamental principles of the Constitution, and 
to those prudential maxims which define the limits and condi- 
tions of a safe constitutional rule, from the point of view of the 
existing government ? 

Whatever can answer these questions in the affirmative is 
legitimate. Whatever, on the other hand, is extra legem, that 
is, established without law, and from a point of view external to 
the existing order ; and whatever, more especially, is adverse in 
its methods or influences, though not, perhaps, in its intent, to 
the government in being, or violates the principles necessary to 
its conservation, is illegitimate. 

Thus far of the term legitimacy. 

§ 109. The term revolution {revolvo, to roll or turn over,) was 
used originally to signify, in a political sense, an uprising of am- 
bitious or discontented subjects, with a view to subvert the exist- 
ing social order. From this has been derived the meaning, most 
common nowadays, with which I use the term, namely, to 
denote a political act or acts done in violation of law, or with- 
out law. The act must be a political one, since it would be an 
abuse of the term " revolution " to apply it to ordinary misde- 
meanors or felonies, which, though infractions of the municipal 
law, have neither in intent nor effect a political bearing. A 
political act is one done either in the exercise or in derogation or 
subversion of political rights, as defined and guaranteed by the 
government established. Such an act, to be revolutionary, ac- 
cordingly, must be done either, first, in violation of law ; that is, 
of the Constitution, or of the customary or statute law, includ- 
ing in the term law, the letter, with its necessary implications ; 
or, secondly, without law ; by which is meant, that the act must 
rest, for its warrant, on abstract considerations, such as physical 
power, necessity, or natural equity, and not upon the authority 
of the existing social order, to which it is extrinsic or hostile. 

From these definitions it follows, that it is erroneous to im- 
pute to all revolutions, what are unhappily the concomitants 
of some, bloodshed and violence. Revolutions are of various 
kinds : — j 



BEVOLUTION. 101 

First, such as manifest themselves in desolating wars, as that 
of the Roses, in England, or that which has just deluged our 
own land with blood. 

Second, such as run their course without bloodshed, but are 
attended by angry collisions of parties, threatening an outbreak 
of violence. 

Third, such as are consummated quietly, without a breach of 
the peace, or even excitement, — often without a distinct percep- 
tion, on the part of the people, of their occurrence. 

§ 110. Of each of the kinds of revolution enumerated, the 
consequences may be varied, wholly without relation to the ap- 
parent magnitude of the forces at work in them. They may, 
indifferently, result in great and permanent changes in the Con- 
stitution of the society in which they occur, or in its laws or 
social condition, whether pronounced successful or not. Or, on 
the other hand, though they may seem to involve colossal forces 
and to be producing great transformations, the resulting changes 
may be slight and temporary. 

Strictly speaking, it is erroneous to distinguish revolutions as 
small or great. It is the want of legality in what is done that 
constitutes the revolution ; and when a thing is done for which 
there is no law, or which is in violation of law, there are no de- 
grees in the illegality, — one thing is as legal as another, when 
both are illegal. It is only of the concomitants or effects of 
revolutions that magnitude can be predicated. 

§ 111. A single further remark is necessary to explain the im- 
port of the term revolution. In what has preceded, revolution- 
ary acts have been conceived of as done, not by the government, 
but by persons without it, though subject to it. But the terra 
revolutionary is often applicable to acts done by the function- 
aries of a state, whilst pursuing its enemies, to defeat them and 
to preserve the state. There is a homely maxim, according to 
which it is proper " to fight the devil with fire," which applies 
well to counter-revolutionary acts. On principle, as being done 
without law or against law, though with the patriotic purpose 
of saving that for which aU laws are made, such acts must 
nevertheless be classed as revolutionary. The moral character 
to be affixed to them, however, is to be determined by the degree 
of their necessity. So far as they are necessary to save the 
existing order, they are for it proper weapons of defence, and 



102 IMPOETANCE OF DEFINING BEVOLUTION. 

their inherent illegality is to be laid to the account of those who 
necessitated their use. So far, on the other hand, as they are 
unnecessary, they are to be stigmatized not only as illegal, but 
as morally indefensible, because stepping farther outside the 
circle of the law than is necessary to grasp and destroy its 
enemy. 

§ 112. The importance of defining the term revolution, and of 
characterizing as revolutionary whatever, by its lack of legality, 
deserves the name, arises from the consideration, that, co-exten- 
sive with the domain of law, is that of precedents. A precedent 
has been defined to be " something to show that, because a thing 
has been done before, therefore it may be done again." ^ Being 
always relative to some rule, it is in the nature of a practical 
construction put upon it by the public authorities, from which it 
is fair to presume they will not depart in similar cases. Now, 
when, in treating of constitutional or political questions, it has 
been determined that an act or thing is without the domain of 
law, having no relations to it except those of hostility, that is, 
is revolutionary, it is also shown to be beyond the domain of 
precedents ; it is, in short, incapable of being drawn into prece- 
dent. In this respect a revolutionary act is like one of theft or 
of homicide. While it is impossible to call either of the latter 
legal, it cannot be denied that both may, under some circum- 
stances, be necessary and justifiable, as to preserve life. But 
such cases are extreme ones, and rest on their own circumstances. 
Because a man yesterday took life justifiably, under circum- 
stances specified, it does not follow that I may take life to-day, 
though the same circumstances may exist, as, in my case, from 
a thousand causes, there may be no necessity for taking life. I 
may be stronger, or my antagonist weaker, than in the case cited 
as a precedent, and the particular of relative strength may not 
have been adverted to in that precedent. If, judging by my case 
alone, it is absolutely necessary for me to take life, I am justifi- 
able in doing so, otherwise not. So, with every act that can be 
characterized as revolutionary. If it be done at all, it must be 
because the doer deems it absolutely indispensable. Moreover, 
it must be done at the doer's risk. If it result successfully, it 
so far lays the foundation for a new order of things. If it fail, 

1 Judge Joel Parker, in the Massachusetts Convention of 1853. Debates 
Mass. Conv. 1853, Vol. I. p. 83. 



BUT TWO MODES OP CALLING CONVENTIONS. 103 

he who did it is liable to the penalties of treason under the old. 
But — and this is the important point — in no event can such 
an act be drawn into precedent, because not done in pursuance 
of any accredited rule or law, of -which it can be regarded as 
a practical construction. 

§ 113. A single remark further as to the terms illegitimate 
and revolutionary. These terms are, to a certain extent, con- 
vertible, but the latter is of a wider signification than the 
former. Illegitimacy refers to illegality of origin, and is perti- 
nent rather to a person or body of persons than to an act. The 
term revolutionary, on the other hand, may be used to charac- 
terize indifferently a body or an act, and involves the idea, as 
we have seen, of illegality in general, that is, of either a want 
of express legal warrant, or a violation of positive law. 

§ 114. To revert now to the subjects proposed for discussion 
in this chapter : — 

I. What is the proper mode of initiating a Convention, look- 
ing at the question from the point of view of theoretical prin- 
ciples ? 

There are but two modes in which a Convention can be initia- 
ted. First, it may be done through the intervention of unofficial 
persons ; that is, by persons acting as private citizens, but giv- 
ing expression, perhaps, to a general desire; or, secondly, by the 
intervention of persons belonging to some branch of the exist- 
ing government, acting in their official capacity, and by that 
government's desire. 

1. A Convention called in the first mode would obviously be 
nothing more than the " Spontaneous Convention " or public 
meeting explained in the first chapter. Lacking official charac- 
ter and relations, the extent to which such a body would express 
the public will, would be simply a matter of conjecture. As no 
legal provision could be appealed to to guide it in determining 
whether all parts of the political body were proportionately repre- 
sented in it, or whether they, who claimed to sit as delegates, 
were entitled to do so, it would be impossible for such an assem- 
bly to vindicate its legal character or its exclusive jurisdiction 
for any purpose whatever. And yet, regarded as a collection of 
persons interested in effecting constitutional changes, that is, 
as a mere public meeting, such a body would be obnoxious to 
no exception. But those who maintain the propriety and legal- 



104 BY ACTION OF UNOFFICIAL PERSONS. 

ity of that mode go farther. They claim for a Convention thus 
assembled, if deputed by a majority of the adult male citizens 
of the State, an official representative character, in virtue of 
which its action is to some extent legally binding on the whole 
State. 

§ 115. How this may be, upon judicial authority, will be the 
subject of future examination. Considered upon principle, it is 
sufl[icient to remark : — 

First, that, if the proposition announced in a former chapter, 
as involved in the definition of sovereignty, be a sound one, that 
sovereignty inheres, in no sense, and to no degree, in the citizen 
as an individual, nor in any number of citizens as individuals, 
but in the society considered as a corporate unit ; then, any aggre- 
gation of individuals, not exhibiting a warrant from the sover- 
eign, through some one of its recognized ordinary agents, for as- 
sembling and acting in its name, is a mere spontaneous assem- 
bly or caucus. It has nothing official In it, and can bind no one 
by its proceedings. If it affect to frame a law or a Constitution, 
and to put it in force, its action is revolutionary. As a body, it 
is neither the sovereign nor any body sprung from it, and so 
known to the law, but is unknown and hostile to both. It is, 
therefore, illegitimate. 

Secondly. The hypothesis that a Convention, called by unoffi- 
cial persons, should express the general desire, is the most favor- 
able one that could be made for those who ascribe legal validity 
to the acts of such a spontaneous assembly. In actual experi- 
ence, insurmountable difficulties would attend the authentic 
ascertainment of that fact. How could it be made known, 
without legal direction and scrutiny, who participated in that 
expression, or whether the returns were correct of those who 
opposed, as well as of those who favored, the call ? Probably, 
as a fact, few meetings, thus originated, would represent more 
than a clique. To those interested in securing the objects of 
the Convention, the attendance of such as were not, would be 
undesirable, and either the latter, therefore, would receive no 
notice of the election of delegates, or the result of it would be 
falsified. Opposing interests would have each its primary meet- 
ing and its delegates. Where all was loose and spontaneous, 
whose duty should it be to determine, among the adverse claim- 
ants to whom the seats in the Convention should be awarded ? 



BY ACTION OP THE GOVEENMENT. 105 

The rejected delegations might really represent the majority. 
At any rate, believing themselves to do so, or pushed on by pas- 
sion to pretend it, rival Conventions, each announcing itself as 
" the people in their sovereign capacity," might assemble, and 
harass the State by conflicting ordinances, heralded as supreme 
laws for its citizens. In all this, there would be, at bottom, no 
legality, because done without law, in the face of the existing 
government. One of the most important ends of government, 
is to ascertain, for the citizen, who are the magistrates, and what 
are the laws. Under its aegis, he can never be embarrassed by 
two sets of functionaries asserting validity for two rival sets of 
laws or two opposing Constitutions. Looking at those whom 
he knows to represent the sovereign, the officers of the existing 
order, he can rest satisfied, that what they recognize as legal is 
so, and what they denounce as illegal, is illegal. The mode of 
calling Conventions now in question would render this impossible. 
No citizen could know either the magistrate, the Constitution or 
the laws he was bound to obey. A Convention, then, called 
in such a mode, it would be a perversion of language to style 
legitimate.^ 

§ 116. 2. The other mode of calling Conventions is by an 
authentic act of the sovereign body acting through some branch 
of the existing government representing it, as the electors, or one 
of the three departments — legislative, executive, and judicial. / 

The propriety of this mode is inferrible firom considerations, 
already presented, of the embarrassments resulting from any 
other possible mode. But it is easy to demonstrate the abso- 
lute impropriety of any other mode. In a former chapter, 
we have seen, that any body of men claiming to act in the 
name of the sovereign, in the discharge of any political func- 
tion, must be presumed to be impostors or usurpers, unless 
exhibiting a warrant so to do from the sovereign, in the 
shape of some law or constitutional provision.^ If it have 
no official character whatever, its individual members are 
impostors. If, having a quasi-official character from that of 
its individual members, as belonging to the system of agen- 
cies established by the body politic and constituting the gov- 
ernment, it nevertheless assume a function not intrusted to 

1 See Webster's Works, Vol. VI. pp. 224-229. 

2 See § 25, ante. 



106 BY THE ELECTORS. 

it, — its members are usurpers. The philosophy of the whole 
subject may be summed up thus : The State has a clear right 
to reproduce itself, as an animal does, at its own will and by its 
own appropriate organs. Only by the exercise of that right can 
its reputed offspring or successor be legitimate, or, what is of 
perhaps equal importance to the citizen, escape the reputation 
of illegitimacy. 

§ 117. Conceding that the . principle just stated, as a general 
one, is true, it remains to inquire into the particulars comprised 
in the term mode ; that is, to determine with reference to all the 
pertinent categories, how a Convention ought to be called to be 
at once legitimate and safe. Taking the word in its broadest 
sense, there must be included in the mode of calling a Conven- 
tion a description, first, of the agencies through which the call 
is to be effected ; and, secondly, of the manner in which it is to 
be done. These will be considered in their order. 

§ 118. 1. As we have seen, the agency through which a Con- 
vention ought to be called, is some branch of the existing gov- 
ernment, that is, either the electors or one of the three ordinary 
departments indicated. To select out of these that one which 
is best 'fitted for such a trust, though a work of some difficulty, 
is one which can be done with considerable exactitude. 

(«). Should it be committed to the electors, independently 
of other departments of the government ? 

The electoral body, though less numerous than the sovereign 
body which it represents, is yet so organized as to incapacitate 
it for assembling or acting together. It has no ministers through 
whom either its functions can be performed or its will in relation 
to them be ascertained. If charged with the duty of deliberating 
upon the call of Conventions, it would act under disadvantages 
precisely the same as would attend the call of such bodies spon- 
taneously by the entire people, or by a majority of the adult 
male citizens. There could be no certitude as to results. To 
produce that, there must be legal provisions, prescribing time 
and mode of passing upon the question of calling such Conven- 
tions. With such a guide, however, the electors would not act 
independently, in the sense intended, but in subordination to the 
legislature. 

§ 119. {h). Should the power of calling Conventions be left 
to the judicial department? It is very doubtful whether the 



THE EXECUTIVE. 107 

judiciary are adapted to perform this function. However exten- 
sive the State may be, that department is never, in point of 
numbers, large, and it is commonly less numerous relatively in 
large than in small communities. It is intended, moreover, for 
a definite and limited function — that of expounding and apply- 
ing the laws. Whenever the judiciary confines itself to its 
proper sphere of action, which is to determine what the law is, 
it is, by that circumstance, unfitted to pronounce what, in a 
complicated maze of facts constituting, at any time, the actual 
situation, the law ought to be. It is therefore observable that 
great judges, like Mansfield, often fail as legislators. By train- 
ing and habits of mind they are retrospective, and distinguish 
themselves more often by obstinate conservatism than by those 
broad practical views, " looking before and after," which consti- 
tute statesmanship. Such idiosyncracies disqualify those who 
possess them for the leadership in reformatory movements, and 
often blind them to their necessity. Being, moreover, a body 
small in numbers, and, for that reason, not likely adequately to 
represent the prevalent wishes or opinions of the people, the 
judicial body ought not to wield the power of calling or re- 
fusing to call Conventions by which propositions of reform are 
to be digested. 

§ 120. (c). Somewhat similar objections exist to the execu- 
tive as a depositary of the power in question. That depart- 
ment consists of a single individual, noted, often, rather for 
political tact than for wisdom or statesmanship. But, if it were 
conceded that our governors were always what, happily, they 
very generally are, wise men and statesmen, and if they could 
be presumed fairly to represent the nation in reference to ques- 
tions of reform, grave objection would still exist against lodging 
the power I am considering in their hands. In our system of 
popular government, it is the executive in whom has been dis- 
covered the greatest centrifugal tendency, and who is, therefore, 
most likely to break through the restraints of law. If our sys- 
tem ever perish, it will probably do so, not from legislative or 
judicial, but from executive, usurpation. And though this re- 
mark seems applicable rather to the Federal executive than to 
those of the States, it is pertinent, also, to the latter. Within 
the sphere of the States, executive usurpation is quite as likely 
to arise on the part of their governors as in the wider sphere of 



108 THE LEGISLATUEE. 

the nation on the part of the President. Which of the two it 
is from whom most danger is to be apprehended, need not 
now be determined. Until the late war, the executive authority 
in the States seemed most to threaten our integrity. Perhaps, 
now, the danger may be reversed. But this is clear : a power 
from which usurpation and overthrow may be apprehended, is 
not the power to be invested with the high sovereign function 
of summoning and commissioning the body by whom constitu- 
tional changes are to be initiated or made. 

§ 121. (d). The alternative, therefore, as our governments 

are constituted, is, that the function of calling Conventions shall 

be committed to the legislature, under such restrictions as the 

sovereign body shall prescribe, or as shall accord with the max- 

; ims of political prudence. 

The legislature is the fittest body to act upon the question 
of calling a Convention, because, of all questions, that is most 
dependent, for a proper decision, on a wise balancing of expe- 
diencies. If the question of making or not making constitu- 
tional changes were one of abstract principles, the opinion of a 
single publicist might outweigh that of the nation. But such 
is not the case ; it is a mixed question of principles and of facts, 
and the task of those who frame Constitutions is, to cause the 
two, however repugnant they may be, as far as possible to har- 
monize in the system established. To accomplish this, the prin- 
ciples underlying all government, and particularly that to be 
reformed, as well as the circumstances, interests, prepossessions, 
and aversions of the people, are to be weighed and allowed for. 
A government built up on any other plan would be a machine 
constructed on the hypothesis that there were no such forces as 
inertia and gravity, and no such drawback as friction. In this 
respect, the legislature is, of all public bodies, that which is best 
adapted to this particular work. It is its prime function to de- 
termine the expedient. Besides, of all representative bodies, 
excepting only the electors, it is, under all forms of government, 
the most numerous. In the United States it is more so than 
elsewhere. The United Kingdom of Great Britain and Ireland, 
with a population of about thirty millions, is represented in 
Parliament by about eleven hundred members, including both 
Lords and Commons. The United States, with a population 
of thirty-four millions, has, in the National and State govern- 



MANNER OF CALLING CONVENTIONS. 109 

ments, whose combined jurisdictions correspond to that of the 
Parliament in England, five thousand two hundred and fifty 
representatives. In this number I do not reckon the city, 
town, and county boards for local self-government, which, in 
the two countries, may be considered as offsetting each other. 
These representatives are, moreover, subject to frequent elec- 
tions. No change of opinion can be permanent or wide- 
spread, without soon making itself felt and respected in the 
legislative body. Practically, the interests of our common- 
wealths, therefore, are nearly as safe in the hands of our legis- 
latures as in those of the electors, whom we ordinarily desig- 
nate by the term people ; the difference being only that a less 
numerous body is proportionately more accessible to corrupting 
influences. 

§ 122. 2. The question next in order is, in what manner shall 
a legislature call a Convention ? The general answer is, by 
some legislative act. As the objects of intrusting the call to 
that body are, first, to insure the assembling of a Convention 
whenever, within constitutional or reasonable limits, public opin- 
ion should have settled upon its necessity, and, secondly, to 
throw around the body, coming comet-like into the system, all 
the legal restraints of which it is susceptible, some act of legis- 
lation would be requisite to accomplish either object. A simple 
resolution or vote, would commonly give expression to the general 
desire, but were that all, there would be danger that party spirit 
might avail itself of majorities to call Conventions for partisan 
purposes. This danger being far from unreal, doubtless the wiser 
course would be for the legislature so to act as to forestall it. 
A check ought to be found by which the probability of its occur- 
rence would be reduced to a minimum. An expedient has been 
adopted in many States, as we shall see more fully in a subse- 
quent chapter, by which this is effected. It has been provided, 
in their Constitutions that, whenever, in the opinion of the legis- 
lature, a Convention is desirable to revise the fundamental law, 
that body shall so declare, by vote or resolution ; that thereupon, 
after a prescribed notice by publication, the sense of the people 
shall be taken on the question of calling a Convention; and 
that the legislature shall thereupon call one, or not, according 
to the result of the popular vote. This mode was much com- 
mended, in 1820, by the eminent persons then composing the 



110 MANNEE OF CALLING CONVENTIONS. 

New York Council of Revision,^ by whom it was declared to be 
most consonant to the principles of our government and to the 
practice in other States, and they accordingly vetoed a bill for 
an act to call a Convention to assemble in the following year, 
on the ground that it did not propose to submit the question to 
the people. There can be no doubt, that this decision was a 
sound one, on constitutional principles. The intervention of 
the legislature is necessary to give a legal starting-point to a 
Convention, and to hedge it about by such restraints as shall 
ensure obedience to the law ; but as a Convention ought to be 
called only when demanded by the public necessities, and then 
to be as nearly as possible the act of the sovereign body itself, 
it would seem proper to leave the matter to the decision of the 
electoral body, which stands nearest to the sovereign, and best 
represents its opinion. Such seems to be the prevailing senti- 
ment in most of the States which have revised their Constitu- 
tions since the date of the decision referred to. 

§ 123. There may, then, be two cases : first, when the legis- 
lature itself passes upon the question of calling a Convention, 
without the intervention of the electoral body ; and, secondly, 
where the legislature first recommends a call, then refers the 
question to a vote of the electors, and, finally, on an affirmative 
vote by the latter, issues the call. 

In the first case, the act of the legislature calling the Conven- 
tion is an act of legislation, strictly so called. It prescribes a 
rule of action for the electors, fixing the time, place, and manner 
of the election to be held by them, and commonly provides pen- 
alties for misconduct either in the officers conducting the elec- 
tion or making the returns thereof, or in the electors voting 
thereat. Such a rule of action is a law.^ In the second case, 
so much of the original act of the legislature as merely recom- 
mends a Convention, cannot be said to be a law. It is, rather, 
an expression of opinion, intended to preface a reference of the 
question to the people, by whom it is to be decided. The sub- 
sequent act, or other sections of the same act, however, by which 
a legislature refers the question to the people, must be conceded 
to be a law, since it has always the force as well as the form 

1 Kent and Spencer, Justices, and Governor Clinton. For the whole opinion 
of the Council, see Appendix, B, post. 

2 1 Blackstone's Commentaries, 44. 



CONVENTIONS OF THE REVOLUTIONARY PERIOD. Ill 

of a law, being in all particulars similar to that by which it 
finally calls the Convention, if ordered by the people.^ 

§ 124. Before closing the discussion of the principles regu- 
lating the legitimate call of Constitutional Conventions, one 
remark is necessary to guard against misconstruction. A Con- 
stitution, or an amendment to a Constitution, originating in 
a Convention justly stigmatized as illegitimate, may, notwith- 
standing its origin, become valid as a fundamental law. This 
may happen in two ways : namely, first, by its adoption by 
the electoral body, according to the forms of existing laws ; or, 
secondly, by the mere acquiescence of the sovereign society. 
Such a ratification of the supposed Constitution or amendment 
would not, however, legitimate the body from whom the Consti- 
tution or amendment proceeded. That no power human or divine 
could do, because, by the hypothesis, such body was in its origin 
illegitimate, that is, as shown in previous sections, convened either 
against law or without law, which in a government of laws, are 
one and the same thing. The ratification by the acquiescence of 
the sovereign, would be a direct exercise of sovereign power, ille- 
gal doubtless, but yet standing out prominently as a fact, and as 
such finding in the original overwhelming power of the sover- 
eign, a practical justification, which it would be folly to gainsay .^ 

§ 125. Let us now see to what extent the practice, under the 
political system of the United States, has conformed to the 
theoretical principles thus developed. 

The Constitutional Conventions thus far held — by those 
terms designating, for the purposes of this chapter, all such 
bodies, legitimate and illegitimate, as have framed Constitutions 
or parts of Constitutions, either for the United States or for 
States members of the Union — may be divided, primarily, with 
reference partly to convenience and partly to their most general 
characteristics, into two great classes : ^ 

(fl). The first class comprises such Conventions as were held 
during the Revolutionary period, extending fi"om 1776 down to 
the establishment of the Federal Constitution in 1789. 

(6). The second class comprises the Conventions of the posi- 

1 For a more full discussion of the distinctions here indicated, which are not 
without important practical bearings, see ch. viii., post. 

2 See § 23, ante. 

3 For a complete list of these bodies, with the dates of their assembling and 
adjournment, so far as can be ascertained, see Appendix, A., post. 



112 CONVENTIONS OP THE EEVOLUTIONARY PERIOD. 

Revolutionary period — that is, such as have been held since the 
4th of March, 1789. 

These two classes will now be considered at length, and in 
their order. 

§ 126. [a). To understand, and therefore properly to character- 
ize, the Conventions embraced in the first class, it will be neces- 
sary to look into the history of the times in which they were 
convened, and to elucidate the general causes and the particular 
acts by which their legal character was determined. 

When the colonies entered upon that course of opposition to 
the crown which ripened into the Revolution, it was neither their 
intention nor their desire to effect a separation from Great Brit- 
ain. To bring them to favor such a measure, there were neces- 
sary the thirteen following years of agitation, crowded with 
distress and humiliation on the part of the colonists, and with 
contemptuous denials of redress and contumelious reproaches 
on that of the imperial authorities. As the contest thickened, 
however, and blood began to flow, the colonial establishments 
one by one succumbed or were suppressed, the royal governors 
fleeing from their enraged subjects, or being arrested by them 
and thrown into prison. To maintain order and tranquillity, 
while the contest with the mother country should continue, it 
became necessary, therefore, to establish new political organiza- 
tions in the several colonies. But, because the necessity for 
them was thought to be temporary, the arrangement at first 
made was merely provisional. The organizations provided were 
of the simplest character, consisting of Provincial Conventions or 
Congresses, modelled on the same plan as the general Congress at 
Philadelphia, comprising a single chamber, in which was vested 
all the powers of government. These bodies, found in all the 
colonies, save Connecticut and Rhode Island, whose Assemblies, 
fairly chosen by the people, it was not found necessary to super- 
sede, were made up of deputies elected by the constituencies 
established under the crown, or appointed by meetings of the 
principal citizens or by the municipal authorities of the chief 
towns and cities. All legislative authority was exercised by 
those bodies directly. Their executive functions were intrusted 
to Committees of Correspondence, of Public Safety, and the like, 
appointed by themselves, and during the sittings of the Conven- 
tions or Congresses, were discharged under their own supervision. 



FORMATION OF REGULAE GOVERNMENTS. 113 

In the interims between their sessions, however, the powers of 
those committees were substantially absolute. 

§ 127. Under organizations thus loose and unrestricted, gov- 
ernment was carried on in the colonies for many months, and 
that without protest or discontent, so long as the general expec- 
tation of a return to allegiance, following upon a redress of 
grievances, continued to exist. As time advanced, however, and 
it became evident, on the one hand, that the mother country 
would not purchase the submission of her revolted subjects by 
compromise or even by conciliation, and, on the other, that the 
work of subduing them, if possible at all, could be accomplished 
only by a long and bloody contest, there arose a general desire 
for the establishment of more regular governments than those 
by Congresses and committees.^ Thus, in May, 1775, the Pro- 
vincial Convention of Massachusetts, charged with the govern- 
ment of the colony, applied to the Congress at Philadelphia for 
explicit advice respecting the proper exercise of the powers of 
government. In reply, after declaring that no obedience was 
due to the act of Parliament lately passed for altering her char- 
ter, that body recommended that the Convention should write 
letters to the several towns entitled to representation in the 
Assembly, requesting them to choose representatives to form 
an Assembly, and to instruct the latter, when convened, to elect 
counsellors ; adding their wish, that the bodies thus formed 
should exercise the powers of government until a governor of 
the king's appointment would consent to govern the colony 

1 This is apparent from the preamble to the resolutions of the New York 
Congress on the subject of forming for that State its first Constitution. It runs 
as follows: — 

" Whereas, the present government of this colony, by Congress and commit- 
tees, was instituted while the former government, under the Crown of Great 
Britain, existed in full force ; and was established for the sole purpose of oppos- 
ing the usurpation of the British Parliament, and was intended to expire on a 
reconciliation with Great Britain, which it was then apprehended would soon 
take place, but is now considered as remote and uncertain. And whereas, 
many and great inconveniences attend the said mode of government by Con- 
gress and committees, as of necessity, in many instances, legislative, judicial, 
and executive powers have been vested therein, especially since the dissolution 
of the former government by the abdication of the late governor, and the ex- 
clusion of this colony from the protection of the King of Great Britain." .... 

See New York Constitution of 1777, in the preamble to which these resolu- 
tions are embodied. 



114 ADVICE OF JOHN ADAMS. 

according to its charter,^ This answer was made in June, 1775, 
and the advice given was followed, and the government thus 
constituted was the only one Massachusetts had until the estab- 
lishment of her first Constitution in 1780. In October, 1775, the 
delegates to the Continental Congress from New Hampshire 
laid before that body instructions, received by them from the 
New Hampshire Convention, to obtain the advice and direction 
of Congress in relation to the establishment of civil government 
in that colony. Similar requests were, about the same time, 
sent up from the Provincial Conventions of Virginia and South 
Carolina. At length, on the 3d and 4th of November, 1775, 
Congress agreed upon a reply to these applications, in which 
those bodies were advised " to call a full and free representation 
of the people, in order to form such a form of government as, in 
their judgment, would best promote the happiness of the peo- 
ple, and most effectually secure peace and good order in their 
provinces during the continuance of the dispute with Great 
Britain." ^ 

§ 128. These important recommendations were extorted from 
Congress by the importunity of colonies whose situation was 
critical, that body being reluctant to inaugurate a general recon- 
struction of government upon a permanent basis, so long as 
there was a possibility of an accommodation with Great Brit- 
ain. Accordingly, as we see, the most that could be wrung from 
it was a recommendation to establish temporary governments, 
without any specification as to the form they should assume, or 
the distribution of their powers. But in this, Congress lingered 
far behind some of its leading members. Ever since the previ- 
ous May, John Adams had exerted all his eloquence to induce 
Congress to lead off in the work of founding permanent organ- 
izations in the States independent of Great Britain. In his 
own language, he urged "the necessity of realizing the theories 
of the wisest writers, and of inviting the people to erect the 
whole building with their own hands, upon the broadest founda- 
tion." He declared " that this could be done only by Conven- 
tions of representatives, chosen by the people in the several 
colonies, in the most exact proportions .... and that Congress 
ought now to recommend to the people of every colony to call 

1 Curtis' Hist. Const. U. S., Vol. I. pp. 36, 37. 

2 Jour. Cont. Cong., "Vol. I. p. 219. 



RESOLUTION OF CONGEESS. 115 

such Conventions immediately, and set up governments of their 
own authority." ^ 

At length, one after another of the Provincial Conventions sig- 
nifying the readiness of the people to support a declaration of 
independence of Great Britain, and it becoming apparent to 
the least far-sighted that such a measure could not long be de- 
layed, as a preparation for it, or rather as the first and not the 
least important step in its consummation, definite action was 
taken on the subject of permanent governments in the States. On 
the 10th of May, 1776, Congress adopted the decisive resolution, 
and on the 15th prefixed to it the preamble, which follow : — 

" Whereas, his Britannic Majesty, in conjunction with the Lords 
and Commons of Great Britain, has, by a late act of Parliament, 
excluded the inhabitants of these united colonies from the pro- 
tection of his crown ; and, whereas, no answer whatever to the 
humble petitions of the colonies for redress of grievances and 
reconciliation with Great Britain has been or is likely to be 
given ; but the whole force of that kingdom, aided by foreign 
mercenaries, is to be exercised for the destruction of the good 
people of these colonies; and, whereas, it appears absolutely 
irreconcilable to reason and good conscience, for the people of 
these colonies now to take the oaths and affirmations necessary 
for the support of any government under the crown of Great 
Britain, and it is necessary that the exercise of every kind of 
authority under the said crown should be totally suppressed, and 
all the powers of government exerted, under the authority of 
the people of the colonies, for the preservation of internal peace, 
virtue, and good order, as well as for the defence of their lives, 
liberties, and properties, against the hostile invasions and cruel 
depredations of their enemies, therefore, — 

" Resolved, That it be recommended to the several Assemblies 
and Conventions of the united colonies, where no government, 
sufficient to the exigencies of their affairs, hath been hitherto 
established, to adopt such government as shall, in the opinion 
of the representatives of the people, best conduce to the happi- 
ness and safety of their constituents in particular, and America 
in general." ^ 

§ 129. This resolution was the turning-point in the Revolu- 

1 Works of J. Adams, Vol. III. pp. 13-16. 

2 Journal of Continental Congress, Vol. II. pp. 158, 166. 



116 PURPORT OF THE RESOLUTION. 

tion, since it foreshadowed and necessitated that of July 4th, 
1776, declaring the independence of the colonies. So well was 
this understood, that, in the debate upon it those delegates who 
opposed its passage did so on the ground that it was the first 
step, to which, if taken, independence must succeed. Mr. Duane 
stigmatized the resolution, to Mr. Adams, as " a machine for 
the fabrication of independence ; " to which the latter, char- 
acterizing it with still greater accuracy, truthfully replied, that 
" it was independence itself." ^ 

The intention of Congress in passing this resolution prob- 
ably was, to recommend that the work of erecting govern- 
ments in the several colonies should be undertaken by the 
legislative authorities thereof; that is, by the Assemblies, in 
such colonies as possessed them, and by the Conventions or 
Congresses in such as had no Assemblies. If this be so, the 
measure came far short of the wise recommendations of Mr. 
Adams, as well as of the requirements of principle. What 
should have been done was, to propose the calling of Conven- 
tions for the specific and only purpose of framing Constitu- 
tions for the colonies, — the calls for them to issue from the 
legislative departments of the existing establishments, whatever 
those establishments might be. It is true, on examining the 
language of the resolution another construction suggests itself 
as the one possibly intended by Congress, namely, one which 
should require the calling in each State, of a body of represent- 
atives of the people, to firame and propose a Constitution, to be 
afterwards submitted to and adopted by the Assembly or Con- 
vention calling it. The phraseology is : " That it be recom- 
mended to the several Assemblies and Conventions of the united 
colonies ... to adopt such government as shall, in the opinion 
of the representatives of the people, best conduce^'' &c. Had 
" the representatives of the people," intended by Congress, been 
those constituting " the several Assemblies and Conventions," it 
might seem more natural, after referring to the latter, to use the 
terms, " to adopt such government as shall in their opinion best 
conduce," &c. But such a construction is, I think, strained. It 
certainly, as will be found hereafter, was not the one adopted in 
the contemporary expositions made of the resolution in the 
several States. Assuming that the true construction devolved 
1 Works of J. Adams, Vol. III. p. 46. 



CONDITIONS OF THE PROBLEM. 117 

upon the "Assemblies and Conventions " the whole duty of fram- 
ing and putting in operation Constitutions for their respective 
colonies, the resolution was less conformable to principle than 
that of the November preceding, containing advice to the con- 
ventions of New Hampshire and South Carolina. The latter 
recommended to those bodies " to call a full and free representa- 
tion of the people, in order to form such a government as in 
their judgment would best promote," &c. It is fair to remark, 
however, that the science of Constitution-making was then in 
its infancy. Our fathers had not yet, from actual administra- 
tion, learned the dangers that attend fundamental legislation, 
nor discovered the safeguards against them which experience 
alone can reveal. Even what seem now to be steps taken with 
a view to conformity to principle, and, therefore, to be strictly 
regular, were not unfrequently the results of chance or of con- 
siderations of temporary convenience, and so, deserving of little 
weight as indicating the degree of knowledge existing on the 
subject among the statesmen of the day. 

§ 130. Upon these recommendations, special or general, the 
several colonies embraced in the first class acted, in framing 
their earliest Constitutions. 

Before proceeding to describe the separate action of each 
colony, with a view to determine whether or not, and how far, 
that action was conformable to principles or otherwise, it will be 
useful to state as concisely as may be, first, the conditions of the 
problem our fathers were required to solve in establishing perma- 
nent republican institutions in place of the make-shifts which 
sprung up with the Revolution ; and, secondly, the elements pre- 
sented by the actual historical situation, for its solution. 

1. The conditions of the problem were simple. The political 
society, known, since the Declaration of Independence, as " the 
United States of America," was called upon to erect for itself an 
independent government, suitable to its needs. This important 
work must be done, so far as possible, regularly and peacefully, 
and, therefore, with the approval and through the ministry of the 
political organizations, or fragments of political organizations, 
then existing, however imperfect they might be, and whatever 
might have been their origin. Of these several organizations, 
wherever there was a subdivision into legislative, executive, and 
judicial departments, use must be made, to initiate the work, 



118 ELEMENTS OF THE PROBLEM. 

of the legislative department, as by its character and functions 
alone fitted to undertake it safely or successfully. Finally, no 
action of any department of the existing organization was, unless 
absolutely necessary, to be taken as definitive, but the people, or 
electoral body, in which the powers of sovereignty were prac- 
tically lodged, must be appealed to to pronounce the fiat by 
which the proposition of the legislature or Convention was to be 
ripened into law. Such were the conditions of the problem. 

2. The elements given for its solution were hardly more com- 
plex. There were the indeterminate provisional organizations 
by which whatever of government the several colonies possessed 
was conducted, being in most of them the irregular and revolu- 
tionary Conventions or Congresses, and in a few the still subsist- 
ing Assemblies, established under the crown, to which reference 
has been made. There was then the equally indeterminate gov- 
ernment of the Union, whose powers were lodged in the single 
chamber known as the Continental Congress ; a body in every 
respect conforming to our definition of a Revolutionary Con- 
vention. To these organizations, local and general, must be 
added those which, during the revolutionary period, were in a 
few cases constructed to succeed them. And, lastly, there was 
the people of the United States, considered, first, as the political 
unit, by which independence was declared, and, secondly, as the 
subordinate groups constituting the States either as peoples or 
as political organizations. Amongst these three orders of polit- 
ical entities, in a manner explained in the second chapter, was 
distributed the exercise of sovereign powers, on the breaking 
out of the Revolution, and, therefore, by them, in their several 
spheres and in a mode conformable to their respective powers in 
the general system, was the work in question to be effected. 

§ 131. The first colony to act upon the recommendations of 
Congress was New Hampshire. In less than a fortnight after 
the passage by Congress of the resolutions of November 3d, 
1775, the Provincial Convention of that colony took into consid- 
eration the mode in which " a full and free representation " for 
the purpose indicated by Congress should be constituted.^ It 
was finally determined that it should take the form of a new 
Convention, to be summoned by the Provincial Convention, and 
that for the purpose of apportioning fairly the delegates to be 
1 Belknap, Hist. N. H., Vol. II. p. 305. 



NEW HAMPSHIRE CONVENTION OF 1775. 119 

chosen to it, a census of the inhabitants should be taken. It 
was moreover recommended, that the representatives chosen 
" should be empowered by their constituents to assume govern- 
ment, as recommended by the general Congress, and to continue 
for one whole year from the time of such assumption." ^ Hav- 
ing recommended this plan, and " sent copies of it to the sev- 
eral towns, the Convention dissolved." ^ In pursuance of the 
recommendations accompanying the plan, a new Convention 
was chosen, and assembled on the 21st of December following, 
by which the first Constitution of New Hampshire was framed, 
and her first formal government, independent of the crown, 
established.^ According to Dr. Belknap, the historian of the 
State, " as soon as the new Convention came together, they drew 
up a temporary form of government; and, agreeably to the trust 
reposed in them by their constituents, having assumed the name 
and authority of a House of Representatives, they proceeded to 
choose twelve persons, to be a distinct branch of the legislature, 
by the name of a Council."* This form of government was 
practically limited to a single year by an ordinance providing 
" that the present Assembly should subsist one year, and if the 
dispute with Great Britain should continue longer, and the Gen- 
eral Congress should give no directions to the contrary, that 
precepts should be issued annually " for the return of " new 
Counsellors and Representatives." By the Convention thus called 
and organized were assumed all the powers of government. In 
a word, it was a Revolutionary Convention. As distinguished 
from the body itself, there was no judiciary, and no executive. 
The only feature in which it resembled a regularly constituted 
government, was in its division into two chambers. But even 
this resemblance vanishes, when it is considered that it was a 

1 Belknap, Hist. N. H., Vol. II. p. 305. 

2 Nov. 16, 1775; Id. p. 305. 

3 Jan. 5, 1776. 

4 Belknap, Hist. N. H., Vol. II. pp. 305, 306. The idea of thus transforming 
the Convention into a legislative assembly with two chambers, was doubtless bor- 
rowed from the Convention called by King William in 1689, which, illegally 
called and constituted, changed itself into a parliament, since known as the Con- 
vention Parliament. Though unquestionably a revolutionary body, this parlia- 
ment became the basis on which the Enghsh government, as then reconstructed, 
rested and still rests. See remarks of Mr. Webster on this subject, Works, Vol. 
VI. pp. 225, 226. 



120 NEW HAMPSHIEE CONVENTION OF 1779 AND 1781. 

voluntary division, the Council being its own creation, and, of 
course, as little independent of the main body as any one of its 
committees. All the powers of the State were concentrated 
in that single body, which was revolutionary not only in its pro- 
ceedings, but in its origin, as called by one revolutionary Con- 
vention at the instance of another, and as exercising, when 
assembled, the functions of a government, provisionally, in place 
of that by which it was convened. 

§ 132. The people of New Hampshire, however, becoming 
dissatisfied with the temporary Constitution of 1776, an attempt 
was made three years later to frame a new one. A Convention 
of delegates, chosen for that purpose, under the direction of the 
existing government, drew up and presented to the people a form 
of a Constitution, but so deficient in its principles and so inade- 
quate in its provisions, that, being proposed to the people in 
their town-meetings, it was rejected.^ On the failure to adopt 
this, a new Convention was elected for the same purpose, and 
commenced its sessions in 1781. The year before, Massachu- 
setts had adopted a Constitution, in the main from a draft pre- 
pared by John Adams, which was supposed to be an improve- 
ment on all that had been framed in America. Having the ad- 
vantage of this, the New Hampshire Convention digested a plan 
and submitted it to the people in their town-meetings, with a 
request that they should state their objections distinctly to any 
particular part, and return them to the Convention at a fixed 
time. The objections were so many and various, that it became 
necessary to alter the form and send it out a second time.^ The 
second plan was generally approved by the people, and thus, 
finally, after nine sessions of the Convention, running through 
more than two years, a Constitution was adopted and put in 
operation, — the instrument being completed October 31, 1783, 
and established with religious solemnities June 2, 1784. 

Of these two last Conventions, it is to be noted, that, unlike 
the first, they were, in the strict sense of the term. Constitutional 
Conventions. They were initiated by the existing government 
of the State, which, whatever may be thought of its legitimacy 
or regularity, was a de facto government, by revolution placed 
in power, and made the basis on which the political structure 
of the State has ever since rested ; the people were fairly repre- 
1 Belknap, Hist N. H., Vol. II. p. 333. 2 id. pp. 335, 336. 



SOUTH CAROLINA CONVENTION OP 1776. 121 

sented in them ; they confined themselves strictly to their con- 
stitutional duty, that of proposing a code of organic laws, ab- 
staining from all usurpation of governmental powers ; and, 
finally, they severally submitted their projected Constitutions to 
a vote of the electors of the State, in their town meetings — 
an act which, as we shall see, constitutes the best guaranty 
of the sovereign right of the people over the form of their gov- 
ernment that has ever been devised.^ 

§ 133. The next colony to act on the recommendations of 
Congress was South Carolina. Like the other colonies whose 
legislatures had been dissolved, South Carolina had governed 
herself, since the rupture with Great Britain, by Provincial Con- 
ventions or Congresses, constituting provisional governments, 
founded upon the right of revolution. The first of these had 
been summoned November 9, 1774, by what was styled " the 
general committee " of the colony.'-^ This body was organized 
similarly to those in the other colonies, and, after the flight of 
the royal governor in September, 1775, centred in itself, or in its 
committees, all the powers of government not vested, by the 
nature of the case, in the Continental Congress. Toward the 
close of the latter year, the necessity for a more stable, as well 
as a more responsible government, made itself felt, and the Con- 
vention applying to Congress, as we have seen, for advice as to 
the formation of such a government, had been recommended, 
in the same terms as New Hampshire, " to call a full and free 
representation of the people, to establish such a form of govern- 
ment as in their judgment will best promote the happiness of 
the people." ^ Acting upon this advice, and following, though 
not perfectly, the example of New Hampshire, the South Caro- 
lina Congress, in conformity to the course of the Convention of 
1689, in England, and to that of their ancestors in 1719, " voted 
themselves to be the General Assembly of South Carolina," 
and framed a Constitution, March 26, 1776, to exist " till a rec- 
onciliation between the colonies and Great Britain should take 
place." This Constitution was modelled after that of Great 

1 See post, ch. vil. 

2 This general committee consisted of ninety-nine members, and was ap- 
pointed by resolution of a public meeting held at Charleston July 6, 1774. 
Hild. Hist. U. S., (1st series,) Vol. III. p. 40. 

3 Resolution of the Continental Congress of Kov. 3, 1775, ante, § 127. 



122 SOUTH CAROLINA CONVENTION OF 1778. * 

Britain, and consisted of three branches : the Congress electing 
thirteen of its most respectable members to be a legislative 
council ; a president and vice-president ; a chief-justice and 
three assistant judges, an attorney-general, secretary, ordinary, 
and judge of the admiralty.^ The instrument embodying this 
plan of government was put in force as the Constitution of 
South Carolina, and was recognized as such for over two years, 
when it was superseded by a. new one. 

§ 134. It is obvious that the mode of proceeding of which 
the result was the establishment of the first Constitution of 
South Carolina, was extremely irregular. The people of the 
State were in no manner consulted in relation to its formation. 
The body by whom that important business was done, was an 
extraordinary assembly, " appointed," as the historian Ram- 
say says, " without the authority of any written law or any 
definite specification of powers." To the function of a Consti- 
tutional, it added those of a Revolutionary, Convention ; its char- 
acter as the latter being in nowise affected by the change in its 
organization, by which it assumed the form of a regular govern- 
ment. The only element of legitimacy possessed by it was, 
that the action taken by it was based upon a recommendation 
'of the Continental Congress, in whom was vested for general 
purposes the exercise of the national sovereignty. 

§ 135. A Constitution thus constructed was not likely to be 
long-lived. A second, but hardly more successful, effort was 
made in 1778. In this case it was not an unauthorized and rev- 
olutionary Convention, but an usurping legislature, which under- 
took the task. In the autumn of 1776, the elections throughout 
the State, says the historian Ramsay, " were conducted on the 
idea that the members chosen, over and above the ordinary 
powers of legislators, should have the power to frame a new 
Constitution, suited to the declared independence of the State." 
"Authorized in this manner," he continues, " the legislature in 
January, 1777, began the important business of framing a per- 
manent form of government. The generous confidence reposed 
in the elected by the electors met with a suitable return of fidel- 
ity on their part. Instead of increasing their own powers, as 
legislators, they diminished those of which they were in posses- 
sion by the temporary Constitution, and extended the privileges 
1 Eamsay, Hist. S. C, Vol. I. p. 263. 



SOUTH CAEOLINA CONVENTION OF 1778. 123 

of their constituents ; nor did they proceed to give a final sanc- 
tion to their deliberations on the subject of the Constitution till 
they had submitted them for the space of a year to the consid- 
eration of the people at large. From the general approbation 
of the inhabitants, the new Constitution received all the author- 
ity which could have been conferred on the proceedings of a 
Convention expressly delegated for the express purpose of fram- 
ing a form of government." ^ 

§ ,136. It would be easy to demonstrate that the Constitution 
of 1778, thus framed, was wholly invalid as an act of funda- 
mental legislation. Without stopping to do this, I shall merely 
cite authority establishing the fact that it was so regarded by 
leading minds at the time of its formation. 

" This temporary Constitution" (that of 1776), says the same 
historian, Ramsay, in his history of South Carolina, "in a lit- 
tle more than two years gave place to a new one formed on the 
idea of independence, which in the mean time had been de- 
clared. The distinction between a Constitution and an act of 
the legislature was not at this period so well understood as it 
has been since. The legislature elected under the Constitution 
of 1776, with the acquiescence of the people, undertook to form 
a new Constitution, and to give it activity under the forms and 
with the name of an " Act of Assembly ! " The doubt thus 
implied was entertained by other eminent South Carolinians. 
President Rutledge refused his assent to the new Constitution, on 
the ground, with others, that the legislative authority, being fixed 
and limited, could not change or destroy itself without subvert- 
ing the Constitution from which it was derived. He finally, 
however, so far yielded to the pressure for a change as to resign 
his ofiSce, whereupon his successor, Rawlins Lowndes, signed 
the Constitution, and it went into operation.^ 

§ 137. As to the character of the body by which the Constitu- 
tion was framed, on the other hand, there can be no doubt what- 
ever. As a Constitutional Convention, it lacked all the elements 
needed to give it legitimacy. It was elected and assembled as 

1 Ramsay's History of the Revolution in South CaroVma, pp. 128, 129. 

2 That the first two South Carolina Constitutions were merely ordinary stat- 
utes, repealable by the General Assembly, was distinctly affirmed by the Supreme 
Court of that State, in the case of Thomas v. Chesley Daniel, 2 Mc Cord's R. 
354, (359, 360). 



124 VIEGINIA CONVENTION OF 1776. 

a legislature, and as nothing else. Notwithstanding the loose 
assertion of Dr. Ramsay, that that body had been elected " on 
the idea " that, " over and above the ordinary powers of legisla- 
tors," it should have power to frame a new Constitution, what- 
ever it did beyond the scope of ordinary legislation must be set 
down, in the absence of any regular expression to that effect of 
the public will, as mere usurpation. How general was that 
idea? What mode was taken to ascertain its existence, and, 
much more, to ascertain the extent to which it was not enter- 
tained? Not only did the legislature undertake, without legal 
warrant, to frame a code of organic laws, but it practically 
ignored the existence of the people, putting its work into opera- 
tion without a submission to them that was at all effectual. It 
thus became guilty of acts of revolution, for which ignorance of 
" the distinction between a Constitution and an act of legisla- 
tion" cannot be received as an excuse. 

§ 138. Next in order after South Carolina, in the work of 
erecting a government, followed Virginia.^ This she did, as 
New Hampshire and South Carolina had done, in pursuance of 
the resolutions of the Continental Congress of the 3d and 4th 
of November, 1775, referred to, advising those colonies " to call 
a full and free representation of the people" for that purpose. 
The mode adopted by Virginia was similar to that followed in 
those colonies. The Provincial Convention elected in April, 
1776, to continue in office one year, met at Williamsburg on 
the 6th of May thereafter, and on the 29th of June following 
framed and established the first Constitution of Virginia.^ This 
Convention was elected as a revolutionary assembly, to carry on, 
as Mr. Jefferson expresses it, " the ordinary business of the gov- 

1 It has been usual to concede to Virginia the honor of having framed the 
first American Constitution. If by that be meant the first which was complete 
according to later ideas of what a Constitution should be, the concession is just. 
The first Constitutions of Kew Hampshire and South Carolina, which were sev- 
eral months earlier in date than that of Virginia, were very imperfect, while the 
latter was so skilfiilly framed that it was not found necessary to change it until 
1830, nearly three quarters of a century after its formation. In this statement 
I leave out of the account altogether the instruments of government drawn up 
by the early Puritan settlers of Massachusetts and Connecticut. If those instru- 
ments are to be called Constitutions, the earliest American Constitution was that 
framed on board of the Mayflower, before the landing at Plymouth. 

2 Journal of Virginia Convention, 1776, pp. 15, 16, 150. 



NEW JERSEY CONVENTION OF 1776. 125 

ernment," in default of the House of Burgesses, and to " call 
forth the powers of the State for the maintenance of the oppo- 
sition to Great Britain." ^ It was not pretended, if the same 
authority is to be credited, that, in assuming to frame a Consti- 
tution, the Convention had any warrant or authority whatever, 
except such as enured to it by virtue of its revolutionary char- 
acter. In so doing, then, it is to be regarded, not as a Constitu- 
tional, but as a Revolutionary Convention. It was not empowered 
to discharge the special and high function of enacting a funda- 
mental code, by any law or by the express desire of the people, but 
acted on its own authority ; and it did not deign to take upon 
its work the sense of the people whom it pretended to represent.^ 
§ 139. Very similar to that just described was the course of 
events in New Jersey. Like most of the colonies, at the time 
the resolution of Congress of May 10, 1776, passed that body, 
New Jersey was under the government of a Provincial Congress 
and committees. The Congress being in session directly after 
the resolution was published, prompt action was taken to carry 
out its recommendations. A resolution was adopted for the 
election of a new Congress, to be held on the 4th Monday of 
May, 1776. Representatives were accordingly chosen at that 
time in all the counties, and the delegates elected, sixty-five in 
number, being five from each county, convened at Burlington, 
on the 10th of June, 1776.^ It does not appear, that this Con- 
gress or Convention (for, elected by the former name, it formally 
changed its title from " Congress " to " Convention " in the course 
of the session at which the Constitution was framed) was elected 
for the sole purpose of framing a Constitution, but rather as the 
successor of that Congress by whose resolution it had been con- 
stituted. Nevertheless, it is probable, that the purpose of elect- 
ing new delegates was understood by the people to be to take 
action upon the two momentous questions of independence and 
of the formation of a government suitable to the altered condi- 

1 JeiFerson, Notes on Virginia, Works, Vol. VIII. p. 363. 

2 Ibid. As to the invalidity of the first Virginia Constitution, as an act of 
organic legislation, and therefore as to its repealability by the General Assembly 
in consequence of the irregular chai-acter of the Convention of 1776, see Jeffer- 
son's Notes on Virginia, Works, Vol. VIII. pp. 363-367. For an opposite view, 
see Tucker's Black. Com., Vol. I. Ft. 1, Appendix, pp. 85, 86, and Kamper v. 
Hawkins, 1 Virg. Crim. Cases, 20. 

3 Mulford, Hist. N. J., p. 415. 



126 NEW JERSEY CONVENTION OP 1776. 

tion of affairs. However that may be, when the Congress met 
at Burlington, petitions were received from the inhabitants in 
different parts of the province, praying that a new form of gov- 
ernment might be established.^ On the 21st of June, therefore, 
a resolution was adopted by a vote of 54 to 3, " that a govern- 
ment be formed for regulating the internal police of this colony, 
pursuant to the recommendation of the Continental Congress 
of the 15th of May last." ^ On the 24th, a committee of ten 
persons was appointed to draft a Constitution, by whom a report 
was made on the 26th of the same month, and the draft reported, 
after discussion in the committee of the whole, was, on the 2d 
of July, adopted as the Constitution of the State, and put in 
operation. 

§ 140. It is not surprising that doubts have existed as to the 
precise character of the first New Jersey Convention. It was not 
the Assembly of the colony, established under the crown, but a 
Provincial Congress, convened to engineer the Revolution, which 
called the body together. It was, therefore, probably, a revolu- 
tionary assembly. This becomes certain, when it is seen that 
the body " had not been chosen for the particular purpose of 
forming a Constitution," but that it had " entered upon it in pur- 
suance of the recommendation of the General Congress, and in 
compliance with petitions from the people, together with the 
sense of the body itself, as to the necessity of the measure," ^ 
this function being added, without legal warrant, to the mass of 
powers claimed and exercised by it in virtue of its revolutionary 
character. As a Constitutional Convention, then, the body was 
irregular and illegitimate. It was a provisional revolutionary 
government, resting on force, and invested with such powers as 
it chose to assume.* Though mention is made of petitions of 
the people, they were obviously of no validity as forming a 
basis for fundamental legislation. What the Convention did, 

1 Mulford, Hkt. N. J.,pp.415-418 ; Journal of N. J. Com., 1776, pp. 9, 14, 23. 

2 Mulford, Hist. N. J., pp. 415-418 ; Journal of N. J. Conv., 1776, p. 23. 

3 Mulford, Hist. N. J,, p. 415, n. (24). 

4 The journal of this Convention, like those of most of the Conventions of 
the Revolutionary period, was largely made up of legislative and executive 
details, covering the whole ground of a government for the colony in civil as 
well as in military affairs. It administered — a function, as we have seen in the 
first chapter, never properly belonging to a Constitutional Convention. See 
Journal, passim. 



DELAWAEE CONVENTION OP 1776. 127 

was done by virtue of its own arbitrary discretion, and no refer- 
ence was made, in any stage of the proceedings, to the people, 
to ascertain their sense, much less to derive from their ratifying 
voice i\\efiat which should give to the Constitution the form as 
well as the effect of law. The first New Jersey Convention 
was legitimate as a Constitutional Convention only as any self- 
elected junto would be so, which had the physical power to give 
to its ordinances the force of law. 

§ 141. Of the proceedings of the Convention which framed 
the first Constitution of Delaware, few traces have been pre- 
served. That that body itself, however, was, for the time when 
it was held, exceptionally regular, may be inferred from the few 
records relating to its origin which remain. 

In July, 1776, the Delaware House of Assembly passed the 
following preamble and resolutions, to wit : — 

" The House, taking into consideration the resolution of Con- 
gress of the 15th of May last for suppressing all authority de- 
rived from the Crown of Great Britain, and for establishing a 
government upon the authority of the people, and the resolution 
of the House of the 15th of June last, in consequence of the 
said resolution of Congress, directing all persons holding offices, 
civil or military, to execute the same in the name of this gov- 
ernment until a new one should be formed ; and also the dec- 
laration of the United States of America, absolving from all 
allegiance to the British Crown, and dissolving all political con^ 
nection between themselves and Great Britain, lately published 
and adopted by this government, as one of those States, are of 
opinion that some speedy measures should be taken to form a 
regular mode of civil polity, and this House, not thinking them- 
selves authorized by their constituents to execute this important 
work — 

" Do resolve — 

" That it be recommended to the good people of the several 
counties in this government to choose a suitable number of dep- 
uties, to meet in Convention, there to organize and declare the 
future form of government for this State. 

" Resolved, also — 

" That it is the opinion of this House, that the said Conven- 
tion should consist of thirty persons, that is to say, ten for the 
County of New Castle, ten for the County of Kent, and ten for 



128 DELAWARE CONVENTION OF 1776. 

the County of Sussex; and that the freemen of the counties 
respectively do meet on Monday, the 19th day of August next, 
at the usual places of election for the county, and then and 
there proceed to elect the number of deputies aforesaid, accord- 
ing to the direction of the several laws of this government for 
regulating elections of the members of Assembly, except as to 
the choice of inspectors, which shall be made on the morning of 
the day of election by the electors, inhabitants of the respective 
Hundreds in each county 

" Resolved, also — 

" That it is the opinion of this House that the deputies, when 
chosen as aforesaid, shall meet in Convention in the town of 
New Castle, on Tuesday, the twenty-seventh day of the same 
month, (August,) and immediately proceed to form a govern- 
ment on the authority of the people of this State, in such sort 
as may be best adapted for their preservation and happiness." ^ 

§ 142. In pursuance of the recommendations contained in 
these resolutions, a Convention was elected on the 19th of Au- 
gust, 1776, which met at the town of New Castle on Tuesday, 
the 27th of August, and, after a session of twenty-eight days, 
adopted the first Constitution of Delaware. 

If, to the particulars given in the foregoing resolutions, there 
be added the caption to the new Constitution, the perfect regu- 
larity and legitimacy of the Convention thus called, from the 
point of view of the new State of Delaware, will become appa- 
rent. That caption is as follows : " The Constitution or system 
of government agreed to and resolved upon by the representa- 
tives in full Convention, of the Delaware State, formerly styled," 
&c., " the said representatives being chosen by the freemen of the 
said State, for that express purposeP 

Here was a Convention called by the legislative Assembly of 
the existing government, by an Act making careful provisions for 
a fair election, and, as may be inferred, elected for the express 
and only purpose of framing a Constitution. Confining itself 

1 Journal of Del. Conv. of 1776. For the foregoing extract I am Indebted 
to William T. Kead, Esq., of "New Castle, Del., who has in his possession a 
manuscript copy of the journal, the only one known to be in existence. It was 
procured from Mr. Read through the kindness of the Hon. Willard Hall, of Wil- 
mington, Del., to whom I am indebted for valuable information respecting the 
various Conventions of that State. 



PENNSYLVANIA CONVENTION OF 1776. 129 

.probably to this limited function, it was strictly a Constitutional 
Convention. 

§ 143. In Pennsylvania, the last Assembly elected under the 
proprietary government continued to meet down almost to the 
Declaration of Independence, but often without a quorum. At 
length, in July, 1776, it was superseded by a Provincial Conven- 
tion, which, based on revolutionary principles, took the govern- 
ment into its own hands. The mode of calling that body was 
as follows : On the 18th of June, 1776, a number of gentle- 
men met at Carpenter's Hall, in Philadelphia, being deputed by 
the committees of several of the counties of the province, to 
join in conference, in pursuance of a circular letter from the 
committee of Philadelphia, inclosing the resolution of the Con- 
tinental Congress of May 10th, 1776.^ After a vote approving 
of that resolution, it was unanimously resolved by the confer- 
ence, that it was necessary that a Provincial Convention should 
be called by them, " for the express purpose of forming a new 
government for this province, on the authority of the people 
only." 2 The conference then proceeded to fix the qualifications 
of electors of deputies to the Convention, giving a vote to all 
" associators " in the province, of the age of twenty-one years, 
who had lived one year in the province, and paid or been as- 
sessed toward any provincial or county tax, and also to every 
person qualified by the laws of the province to vote for repre- 
sentatives in Assembly, upon their taking a prescribed oath. A 
committee, appointed to apportion the representation in the Con- 
vention amongst the several districts of the province, recom- 
mended, and the conference voted, that eight representatives 
should be sent by the City of Philadelphia, and eight by each 
county in the province. The electors were then required to meet 
on the 8th of July following, to elect the members of the Con- 
vention, and the latter, to meet on the 15th of the same month. 
On the day appointed the Convention met at Philadelphia, and 
continued in session until the 28th of September following, 
when it adopted and put into operation the first Constitution of 
Pennsylvania. 

§ 144. Although the resolution of the conference calling this 
Convention " for the express purpose of forming a new govern- 
ment," &c., might be construed to limit that body to that par- 

1 Conventions of Pennsylvannia, p. 35. 2 Id. p. 33. 

9 



130 PENNSYLVANIA CONVENTION OF 1776. 

ticular business, yet it did not in fact so restrict itself, and it is 
doubtful if the conference intended so to restrict it, for, by sub- 
sequent resolution, passed on the 23d of June, the latter recom- 
mended to the Convention to choose delegates to the Conti- 
nental Congress, and also a Council of Safety to exercise the 
whole executive powers of government, so far as related to the 
military defense of the province, and to make such allowance 
for their services as should be reasonable. Thus the Convention 
received from the body calling it, so far, at least, as the latter 
could give it, authority to exercise both legislative and executive 
functions, in addition to those enuring to it by virtue of its spe- 
cial commission ; and the journal of that body shows, that much 
of its time was occupied, from day to day, while framing the 
Constitution, in business of an ordinary legislative or executive 
character. Of the illegitimacy, therefore, of this Convention, 
considered as a Constitutional Convention, there is no doubt. 
Based upon necessity, in times of revolution, while that body 
became the foundation of a new order of things, to which must 
be conceded, especially after it received the acquiescence of the 
people, a relative legality or legitimacy, yet it was itself, both in 
its origin and in its essential character, a revolutionary assembly. 
It was not only that, it was for a revolutionary assembly formed 
less regularly, that is, with a greater divergence from safe con- 
stitutional precedents, than was really necessary. It was called 
by a self-constituted conference of committees, themselves ap- 
pointed without legal sanction ; and the question of its assem- 
bling, or of ratifying the fruit of its labors, was not submitted 
to a vote of the people, though it is true the delegates of which 
it was composed were chosen by the electors under the old 
establishment, but by them together with others named by the 
conference. This latter circumstance, instead of adding to its 
regularity, was a wider departure from safe precedents than any 
other that occurred, since the power of election was given to 
persons by existing laws not authorized to vote at general elec- 
tions. From all this it is clear, that, however perfectly the body 
may have reflected the public will, the first Pennsylvania con- 
vention was a Revolutionary and not a Constitutional Convention. 
It was itself, for the term of its existence, the government of 
Pennsylvania, not a mere auxiliary or adviser to the govern- 
ment. 



MARYLAND CONVENTION OF 1776. 131 

§ 145. Substantially the same observations may be made 
respecting the Convention which framed the first Constitution of 
Maryland. For over tu^o years prior to the assembling of that 
body, the colony of Maryland had been governed by a provis- 
ional organization of revolutionary origin, her Provincial Con- 
gress, which, like most of its fellows in the sister colonies, 
wielded all the powers of government — legislative, executive, 
and judicial. This body, having early received a copy of the 
resolution of the Congress of May 10th, 1776, after much reluc- 
tance and hesitancy, on the 3d of July, 1776, resolved, " That 
a new Convention be elected for the express purpose of forming 
a new government, by the authority of the people only, and 
enacting and ordering all things for the preservation, safety, and 
general weal of this colony." It then proceeded to apportion 
the representation in the Convention, determine the qualifications 
of voters, and the mode of conducting the elections, and to ap- 
point judges thereof. The city of Annapolis, the town of Balti- 
more, and the several districts of the county of Frederick, were 
to have two representatives each, and the remaining counties 
four each. Every freeman above twenty-one years of age, pos- 
sessed of the freehold or other property qualification specified in 
the resolutions, was entitled to vote at the election of repre- 
sentatives in the Convention. The members elected were to 
meet in Convention on Monday, the 12th of August, 1776, and 
were to continue in session not beyond the first day of Decem- 
ber, 1776.^ The Convention met in accordance with these reso- 
lutions, framed and adopted a Constitution November 8th, 1776, 
and, on the 11th of the same month, after a session of eighty- 
nine days, adjourned. 

As in the case of the Pennsylvania Convention, a very large 
proportion of all the time occupied in the session of that of 
Maryland, was taken up in ordinary legislative and executive 
business, or, in the language of the resolutions under which it 
assembled, in " enacting and ordering all things for the preserva- 
tion, safety, and general weal " of the colony. It was, in a 
word, the only government that colony had during the interim 
between the adjournment of the old Provincial Convention and 
the establishment of the State government under the first Con- 
stitution. It was, therefore, not a Constitutional Convention, but 
1 Conventions of Md., pp. 184-189, 



132 NORTH CAROLINA CONVENTION OF 1776. 

a provisional government, or Revolutionary Convention. Or, if 
the circumstance that the body assumed no powers not specifi- 
cally granted by the Provincial Congress, be urged as indicating 
that it was not a revolutionary body, it was at least an abnormal 
assembly wielding the combined powers of government, and, 
besides, exercising 'the incompatible powel- of remolding the 
political society from v^'hich all its ordinary powers were derived. 
Considering its origin, however, and the fact that the structure 
founded by it was established by the sole authority of the Con- 
vention itself, that body was clearly, as a Constitutional Conven- 
tion, irregular and revolutionary. 

§ 146. In North Carolina an early but unsuccessful effort was 
made to establish a civil government independent of the crown. 
At its session at Halifax, in April, 1776, the Provincial Conven- 
tion of North Carolina appointed a committee of its ablest men 
to prepare a draft of a Constitution. This committee being 
unable to agree upon any form, after much debate and frequent 
postponements, the question was adjourned, and a committee 
appointed to propose a temporary form of government until the 
next session. The system adopted was that of a Council of 
Safety, which body recommended to the people to elect, on the 
15th of October, delegates to a Congress, to assemble at Halifax 
on the 12th of November following, " which was not only to 
make laws but also to frame a Constitution, which was to be the 
corner-stone of the law." ^ The Convention met at the time and 
place appointed, and, on the 18th of December, adopted the first 
Constitution and Bill of Rights of North Carolina.^ As recom- 
mended by the Council of Safety, this Convention did not con- 
fine itself to the business of framing a Constitution, but " per- 
formed the functions of an ordinary legislature." ^ 

If it were conceded, then, that that body was legitimate in its 
origin, as having been called by the de facto government of 
North Carolina, the Council of Safety, it ceased to be legitimate 
as a Constitutional Convention the moment it assumed general 
powers of legislation and government. It then became a Revo- 
lutionary Convention, with independent powers, whose extent 
was limited only by its own discretion. But it was not legiti- 

1 Wheeler's Hist. N. C, p. 84. 

2 Id. p. 86. 

3 Eev. Code of N. C, (1845,) p. 5. 



GEORGIA CONVENTION OF 1776. 133 

mate even in its origin. It was at once the appointee and the 
successor of the Council of Safety, a revolutionary tribunal, in 
whose single hands was massed the whole power of the State, 
which it passed over to the Convention called by itself. 

§ 147. The first independent government of Georgia consisted 
of a Provincial Congress, organized in January, 1775. 

Feeling the need, however, of some broader basis of action, 
the Provincial Congress itself, on the 15th of April, 1776, adopted 
a preamble and resolutions as the groundwork of a more stable 
and formal government, the result of which was the establish- 
ment of a system similar to that adopted in New Hampshire 
and other colonies, under the recommendations of Congress 
of November 3 and 4, 1775 ; that is, the Provincial Congress 
resolved itself into a legislature, and appointed a President, a 
Council of Safety of thirteen members, and judicial and execu- 
tive officers,! — an evident imitation of the action of the Eng- 
lish convention of 1689 in voting itself to be a Parliament. By 
the terms of the resolutions, however, the system was to be a 
temporary one, to continue only " for the present, and until the 
further order of the Continental Congress, or of this or any 
future Provincial Congress." 

Accordingly, when, in July, 1776, the Declaration of Inde- 
pendence was adopted, it was deemed necessary " to take down 
the old civil and political superstructures and erect new estab- 
lishments in their places." In the words of the historian of the 
State, " to meet the exigency arising from this new attitude of 
the Continental Congress, in declaring the American colonies 
free and independent. President Bullock issued a proclamation, 
based on a recommendation of the general Congress, ordering the 
several parishes and districts within this State to proceed to the 
election of delegates, between the 1st and 10th days of Septem- 
ber next, to form and sit in Convention ; and the delegates so 
elected are directed to convene at Savannah on the first Tues- 
day in October following, when business of the highest conse- 
quence to the government and welfare of the State will be 
opened for their consideration." ^ 

" The deputies," he continues, " met in Convention at the time 
appointed, and took up the important subject before them. 

1 Stevens' Hist, of Geo., Vol. II. pp. 291, 292. 

2 Id. P13. 296, 297. 



134 GEORGIA CONVENTION OF 1788. 

Much other business, however, pressed upon them, consequent 
on putting the State in a proper posture of defence ; but, after 
one or two adjournments, they accomplished their work, and on 
the 5th of February, 1777, ratified in convention the first Consti- 
tution of the State of Georgia." ^ 

From this account of the first Georgia Convention, it is evi- 
dent the body was a Revolutionary Convention. It was called 
in an irregular manner, by proclamation of the executive head 
of the temporary establishment, and, when assembled, it entered 
upon the discharge of the general duties of a government, con- 
cerning itself with the measures necessary for " putting the State 
in a proper posture of defence." In this course of administra- 
tion it was guided only by its own discretion, having neither 
law nor Constitution to fetter it. A body thus assembled, and 
thus charged with discretionary powers, cannot be a Constitu- 
tional Convention, strictly so called. 

§ 148. The second attempt of Georgia to supply herself with 
a Constitution was made with greater regularity. 

The Federal Convention, having submitted to the States the 
project of a new Constitution, and the prospect seeming fair that 
it would be adopted, in order to bring the State government into 
harmonious action with that instrument, as well as to remedy 
certain defects experienced in the practical working of the State 
Constitution, under which the government of Georgia had been 
working since 1777, it was found necessary to revise the latter, 
or construct a new one. Accordingly, on the 30th of January, 
1788, the legislature resolved, " that they would proceed to name 
three fit and discreet persons from each county, to be convened 
at Augusta by the executive, as soon as may be after official 
information is received that nine States have adopted the Fed- 
eral Constitution ; and a majority of them shall proceed to take 
under their consideration the alterations and amendments that 
are necessary to be made in the Constitution of this State, and 
to arrange, digest, and alter the same in such manner as, in 
their judgment, will be most consistent with the interest and 
safety, and best secure the rights and liberties to the citizens 
thereof." ^ 

On the 6th of October, 1788, the official letter of the secre- 

1 Stevens' Hist, of Geo., Vol. 11. pp. 297, 298. 

2 Id. p. 388. 



TWO GEORGIA CONVENTIONS OF 1789. 135 

tary of Congress, stating that nine States had accepted the 
Constitution, was laid before the executive council ; and, accord- 
ingly, Governor Handley called the members nominated and 
appointed by the legislature to meet at Augusta on the 4th of 
November, " in order to carry the aforesaid resolutions of the 
General Assembly into execution." ^ 

The Convention met accordingly, and on the 24th of Novem- 
ber agreed to and signed a Constitution to be proposed for adop- 
tion to another body, created by a resolution of the General 
Assembly, composed of three persons from each county, chosen 
by the inhabitants thereof on the first Tuesday in December, 
and who were to meet at Augusta on the 4th of January, 1789, 
" vested with full power, and for the sole purpose of adopting 
and ratifying or rejecting" the Constitution.^ 

This second Convention met in January, and proposed certain 
alterations of the form laid before them. These, by direction 
of the General Assembly, were also made known to the people ; 
and Governor Walton was directed to call a third Convention 
" to adopt the said original plan or form of government, with or 
without all or any of the alterations contained and expressed in 
the after-plan of January last." 

This Convention met on the 4th of May, 1789, considered the 
several articles and plans before them, and on the 6th of the 
same month adopted that portion of them known as the second 
Constitution of Georgia.^ 

§ 149. Though the series of acts resulting in the establish- 
ment of the second Georgia Constitution, on the whole, gives 
evidence of an anxious desire on the part of the public authori- 
ties to found that Constitution on the people, still there were 
anomalies in the mode of calling the Convention which framed 
it, that indicate great ignorance or great disregard of sound 
principles, and tend to throw doubt on the legitimacy of that 
body. The deputies to form the Convention were, in effect, but 
a committee of the legislature, since, at the time of calling that 
body, the latter proceeded " to name three fit and discreet per- 
sons from each county " to constitute the Convention. In sub- 
stance, then, it was the legislature, taking upon itself the work 
of remodeling the Constitution, from which it derived its exist- 

1 Stevens' Hist, of Geo., Vol. II. pp. 388, 389. 

2 Id. p. 390. 3 Ibid. 



136 NEW YORK CONVENTION OF 1776. 

ence and its powers — a blending of functions which is never 
permissible under our Constitutions, and which has the sanction 
of no respectable authority. The body was, therefore, not legiti- 
mate as a Constitutional Convention. 

§ 150. Close in the wake of Georgia in the work of adopt- 
ing a Constitution, followed New York. The party of the Revo- 
lution meeting in New York wdth much greater opposition than 
elsewhere, that colony was comparatively tardy in adopting 
either a provisional government or a Constitution. The legisla- 
ture, from a variety of causes, refusing, in the spring of 1776, to 
elect delegates to the second Congress at Philadelphia, a vote 
was taken throughout the city of New York, on the question 
of sending representatives to that body, when there appeared 
825 votes for, and 163 against it. After this indication of pub- 
lic sentiment, the rural counties cooperating with the city, a Pro- 
vincial Congress of forty-one delegates met on the 20th of April, 
1776, and reelected the members of the Continental Congress. 
Other Congresses or Conventions of a similar character suc- 
ceeded, and took upon themselves the government of the colony. 
At length, on the 31st of May, 1776, the one then in session, 
after premising, in terms already referred to, that the govern- 
ment by Congress and committees then prevailing in the col- 
ony, had originally been designed to continue only until a recon- 
ciliation with Great Britain, of which no hope any longer 
existed; that " many and great inconveniences" attended "the 
said mode of government by Congress and committees, as, of 
necessity, in many instances, legislative, judicial, and executive 
powers" had been "vested therein, especially since the dissolu- 
tion of the former government;" that doubts had arisen that 
Congress were invested with sufficient power and authority to 
deliberate and determine on so important a subject as the neces- 
sity of erecting and constituting a new form of government and 
internal police, to the exclusion of all foreign jurisdiction, do- 
minion, and control whatever ; and, finally, declaring that it 
belonged of right solely to the people of the colony to deter- 
mine the said doubts, ^ . 

" Resolved, That it be recommended to the electors in the 
several counties in this colony, by election in the manner and 
form prescribed for the election of the present Congress, either 
to authorize (in addition to the power vested in this Congress) 



NEW YORK CONVENTION OP 1776. 137 

their present deputies, or others in the stead of their present 
deputies, or either of them, to take into consideration the 
necessity and propriety of instituting such new government as, 
in and by the said resolution of the Continental Congress is 
described and recommended ; and if the majorities of the coun- 
ties, by their deputies in Provincial Congress, shall be of opinion 
that such new government ought to be instituted and estab- 
lished, then to institute and establish such a government as they 
shall deem best calculated to secure the rights, liberties, and 
happiness of the good people of this colony, and to continue in 
force until a future peace with Great Britain shall render the 
same unnecessary." ^ By another resolution, the Congress rec- 
ommended the mode in which the election should be conducted, 
and that the Convention so elected should assemble on the sec- 
ond Monday in July, 1776. 

§ 151. In pursuance of these resolutions, a Convention ^ was 
elected, which met at White Plains on the 9th of July, 1776. 
The first action of this body was upon the Declaration of Inde- 
pendence, a copy of which had been received. It expressed its 
concurrence in the reasons set forth in the recital of said declara- 
tion, and, adopting that instrument, instructed its delegates in 
Congress to use their best efforts to obtain the objects of said 
declaration. Soon after the time of its assembling, the condi- 
tion of aftairs in the State became so perilous, on account of the 
advance of the enemy, and the time of the Convention was so 
much taken up with the transaction of legislative and executive 
business, that it made but little progress in framing a Consti- 
tution. At length, however, a draft of a Constitution was pre- 
sented, in the handwriting of Mr. Jay, on the 12th of March, 
1777. It was under discussion from that day until the 20th of 
April, 1777, when it was adopted with but one dissenting voice. 
After its adoption, the Convention continued in session until the 
8th of May, 1777, engaged in business as a Council of Safety, 
and adopting ordinances necessary to put the new government 
in operation. 

§ 152. The instrument thus framed was at that time generally 
regarded as the most excellent of all the American Constitutions. 

1 Preamble to the N. Y. Const, of 1777. 

2 When this body first convened, it was deuoininated a Congress, but it after- 
wards adopted the title of Convention. 



138 VERMONT CONVENTION OF 1777. 

Mr. Jay took a leading part in its formation, having, it is said, 
left Congress to attend the Convention for that purpose. The 
proceedings, moreover, which resulted in its adoption, seem, con- 
sidering the circumstances of the time, to have been so ordered 
as to make it substantially the work of the people. But the 
Convention by which that instrument was framed, was tainted 
by the vice inherent in most of those held during the Revolu- 
tionary period ; it exercised, by usurpation or by the pretended 
grant of the Provincial Congress, governmental powers. While 
occupied in framing the Constitution, it spent much of its time 
in administrative business, and, after its completion, it continued 
to act, as above stated, as a Council of Safety, adopting the 
ordinances necessary to put the new government in operation. 
It was, therefore, a Revolutionary Convention.^ 

§ 153. The position of the State of Vermont, during the 
period we are now considering, was peculiar. Engaged, like the 
thirteen colonies forming the Union, in a war with Great Brit- 
ain, in behalf of " the continent," she maintained, at the same 
time, a spirited contest, on her own account, with her powerful 
neighbor, New York, to repel what she deemed unjust territorial 
aggressions. The particulars of this double contest it is unne- 
cessary to rehearse. It is sufficient to say that at the end of the 
war with Great Britain, Vermont had succeeded in establishing 
her independence, not only of Great Britain, but of New York, 
under a Constitution, which, in most of its important features, 
has remained unchanged to this day. The first step in this 
course was to call a Convention to pass upon the question of 
Independence, in imitation of the Continental Congress acting 
for the thirteen colonies. Circular letters were addressed by 
some of the most influential persons to the different towns, in 
pursuance of which delegates were appointed to a Convention, 
which met at Dorset, on the 24th of July, 1776. By different 
adjournments, a decision of the question was postponed until 
January, 1777, when the Convention again assembled at West- 
minster, and declared the New Hampshire Grants, for thus was 
Vermont then styled, a free and independent State. The Con- 
vention then adjourned, to meet again at Windsor, in the fol- 
lowing June. The little State, thus boldly claiming for herself 

1 For an account of the proceedings of the first New York Convention, see 
Deb. of the N. Y. Conv., 1821, Appendix, pp. 691-696. 



VEKMONT CONSTITUTION OF 1777. 139 

a position among the nations of the earth, at once became an 
object of general attention. That New York would not readily 
acquiesce in her pretensions was certain, and it was very doubt- 
ful whether the Congress would recognize her independent char- 
acter, much less admit her into the Union. At this juncture, a 
citizen of Philadelphia, Thomas Young, a prominent Democrat, 
and an experienced Constitution-maker,^ published an address, 
urging the people of Vermont to maintain the ground they had 
taken, assuring them that he had taken the minds of the leading 
members of Congress, and that all they had to do was to " send 
attested copies of the recommendation " of the Congress, " to 
take up government, to every township .... and invite all free- 
holders and inhabitants to meet in their respective townships 
and choose members for a general Convention, to meet at an 
early day, to choose delegates for the general Congress, a Com- 
mittee of Safety, and to form a Constitution." ^ This address 
was dated the 11th of April, 1777. At the adjourned session of 
the Convention, therefore, in June, 1777, in pursuance of this 
advice and of the recommendation of the Congress, that body 
appointed a committee to draft a Constitution, and then, by 
resolution, recommended the people to elect delegates, in their 
several towns, to meet in convention, at Windsor, on the 2d of 
July following, to pass upon the draft prepared by the committee. 
Delegates were accordingly elected, who met on the day named, 
and afterwards adjourning, and coming together in December, 
adopted and put in operation the first Vermont Constitution.^ 

§ 154. For a Convention called by a people in a condition 
so thoroughly revolutionary as that of Vermont, it is doubtful 
whether more of the elements of regularity could be expected 
than are here exhibited. Still, it was a Revolutionary Conven- 
tion, that is, one exercising, beside the special function of a Con- 
stitutional Convention, the high powers of a Council of Safety, 
which were thoroughly despotic and of every variety wielded 
by any government whatever, so far as deemed by itself to be 
necessary. Moreover, the Constitution framed by the Conven- 
tion was not submitted to the people for ratification. Though 

1 The marked similarity of the first Vermont Constitution to the first Consti- 
tution of Pennsylvania, was doubtless owing to him. 

2 Williams' Hist. Vt, p. 75. 

3 Id. p. 79. 



140 VERMONT CONVENTIONS OF 1785 AND 1786. 

the necessity of submitting it for that purpose was not denied, 
it was deemed unsafe to do so, on account of the perils then 
surrounding the State, as well from foreign as domestic enemies. 
But the failure to base the new government on the people, awak- 
ened a general distrust as to its validity. Objection was made 
to it, that the credentials of the delegates to the Convention 
authorized them to form a Constitution, but were silent as to 
its ratification by them, and that it never was submitted to the 
people for ratification or rejection.^ Attempts were made, on 
several occasions, to remedy this defect, and the mode in which 
this was sought to be done, marks the immaturity of the views 
prevalent at that time in regard to the proper method of effect- 
ing constitutional changes. The legislature of the State, at its 
session in February, 1779, passed an Act declaring, that the 
Constitution, " as established by general Convention, held at 
Windsor in July and December, 1777, together with and agree- 
able to such alterations and additions," as should be made in 
pursuance of its provisions, should " be forever considered, held, 
and maintained, as part of the laws of the State." ^ Not con- 
tent with this, the same body, at a subsequent session, held in 
1782, passed another Act in similar terms, for the same purpose, 
which, by the preamble, was declared to be " to prevent disputes 
respecting the legal force of the Constitution of this State." ^ 

§ 155. In 1786, a revision was made of the first Vermont 
Constitution, by a Convention called for that express and only 
purpose. By the 44th. section of that instrument, provision had 
been made for the appointment, in 1785, and at the end of every 
seven years thereafter, of a Council of Censors, whose duty it 
should be, with other things, to call, by a vote of two-thirds of 
its members, a Convention to amend the Constitution, " if there 
should appear to them an absolute necessity of so doing." By 
a subsequent clause, all amendments were to be proposed by 
the Council of Censors, and the Convention were merely to 
pass upon them ; and, to make it certain that the changes, if 
any, should be substantially the work of the people, the Coun- 
cil were required to publish the articles to be amended, and the 
proposed amendments thereto, at least six months before the 

1 Slade's State Papers, p. 240, note, referring to Allen's Hist. Vt. 

2 Act of February 11, 1779. See Slade's State Papers, p. 288, note. 

3 Act passed in June, 1782. See Slade's Staie Papers, p. 449. 



MASSACHUSETTS CONVENTION OF 1778. 141 

day appointed for the election of the Convention, "for the con- 
sideration of the people, that they may have an opportunity of 
instructing their delegates on the subject." 

Under this system, copied from that of Pennsylvania, Coun- 
cils of Censors have been chosen every seven years down to the 
present time. That Council which held its session in 1785-86, 
called a Convention, to meet in June of the latter year, by which 
the Constitution was revised and published as the Constitution 
of 1786. Though differing from the Conventions of any other 
State in the Union, as to the extent and nature of their func- 
tions, those of Vermont, excepting her first, must be conceded 
to be, in their origin, at least, legitimate. Whether the facts, 
that they have received the amendments, upon which they 
have deliberated, from the Councils which called them, and 
that they have been required by the Constitution to pass upon 
those amendments definitively, distinguish them essentially from 
Constitutional Conventions, may be the subject of some doubt. 
Probably, the correct view to take of them is to regard them as 
Constitutional Conventions, exercising extraordinary powers, 
not by usurpation, as did their prototype, the Revolutionary Con- 
vention of 1777, but by virtue of special constitutional provision 
— in which view it would be impossible to deny to them regu- 
larity and legality.^ 

§ 156. The latest of all the original States of the Union to 
frame a Constitution, was Massachusetts. We have seen, that 
as early as May, 1775, the Provincial Convention of that State, 
on the withdrawal of her charter, had applied to the Congress 
at Philadelphia, for advice respecting the proper exercise of the 
powers of government in that colony. In answer, the Congress 
had recommended the election of representatives by the several 
towns, to form a General Court, which was to meet and choose 
councilors, and had added the wish that those bodies should 
exercise the powers of government until a governor of the King's 
appointment would consent to govern the colony according to 
its charter. The arrangement thus recommended, which was 
provisional and temporary, was made, but no written Constitu- 
tion was drawn up. For reasons set forth in the cases of the 
other colonies, this establishment proving unsatisfactory, in Sep- 
tember, 1776, the Massachusetts Assembly voted to take steps 
1 See post, § 220, and note. 



142 MASSACHUSETTS CONVENTION OP 1779. 

toward " the framing of a form of government." Accordingly, 
on the 5th of May following, the same body recommended to 
the people to authorize their representatives to the General As- 
sembly next to be chosen, to form a Constitution, to be submitted 
to them for adoption or rejection, and, if approved by a two-thirds 
vote of the people, to be put in force by the General Assembly. 
On the 28th of February, 1778, the succeeding General Assem- 
bly, sitting as a Convention, agreed upon a Constitution, in the 
preamble to which, referring to the resolution of the 5th of May 
preceding, they recited that their constituents had instructed 
them " in one body with the Council," to form such a Constitu- 
tion as they should judge best calculated to promote the happi- 
ness of the State. This Constitution, being submitted to the 
people at town-meetings held throughout the State, was, by the 
large majority of five to one, rejected. The reasons for this 
rejection were twofold : first, what were thought to be defects 
in the instrument itself ; and, secondly, dissatisfaction on account 
of " the anomalous nature of the body by which it had been 
framed." ^ The anomaly, doubtless, consisted in its double char- 
acter of Assembly and Convention, which the people had the 
good sense to recognize as of dangerous tendency. It must, 
moreover, have been doubtful whether it was the sense of the 
people that the Assembly should assume to meddle with the 
fundamental law, since it does not appear that a regular vote 
was taken throughout the State, by the returns of which it could 
have been determined, with certainty, on which side of the ques- 
tion was cast a majority of votes. 

§ 157. The next attempt to frame a Constitution for the State 
was more successful. The General Court, as the legislature 
was called, on the 20th of February, 1779, directed the select- 
men of the several towns to cause the freeholders and other 
inhabitants in their respective towns, duly qualified to vote for 
representatives, to be lawfully warned to meet together in some 
convenient place therein, on or before the last Wednesday of 
May following, to consider of and determine upon the following 
questions : — first, whether they chose, at that time, to have a 
Constitution, or form of government made ; secondly, whether 
they would empower their representatives for the next year to 
vote for the calling a State Convention, for the sole purpose 
1 Proceedings of the Mass. Conv. of 1820, p. vi., note. 



MASSACHUSETTS CONVENTION OF 1779. 143 

of forming a Constitution, provided it should appear to them, 
on examination, that a major part of the people, present and 
voting at the meetings called in the manner and for the purpose 
aforesaid, should have answered the first question in the affirma- 
tive.^ 

The people assented to both of these propositions by large 
majorities. Accordingly, the General Court, by a resolution 
passed June 17, 1779, provided for the election of delegates to 
a Convention, to meet on the first of September following.^ 
The delegates elected under this resolution, assembled on the 
day appointed, and chose a committee of thirty to prepare a 
Constitution and Declaration of Rights, and adjourned over to 
the 28th of October. The committee delegated to John Adams, 
one of their number, the task of preparing the Declaration of 
Rights, and to him, with James Bowdoin and Samuel Adams, 
that of drafting the Constitution. At the adjourned session 
commencing October 28th, the Committee presented their draft, 
which, af^""' "^'^U discussion, and several adjournments for the 
purpose of securing a full attendance of the members, was 
adopted by the Convention, March 2, 1780. The Convention 
then adjourned again to the first Wednesday of June, 1780, 
having first made provision for taking the sense of the people 
upon the Constitution, and adopted an address to them explain- 
ing the principles of that instrument. On the 7th of June, 
1780, the Convention reassembled, and, it appearing that the 
whole Constitution had been approved by the people, by more 
than a two-thirds vote, declared, June 16, 1780, " the said form 
to be the Constitution established by and for the inhabitants of 
the State of Massachusetts Bay." 

§ 158. Such was the jealousy exhibited by the people of Mas- 
sachusetts, of the unauthorized interference of any body of men 
with their appropriate function of establishing the fundamental 
law. Being the latest of all the original thirteen States to 
engage in the work of Constitution-maldng, Massachusetts pos- 
sessed the great advantage of being able to profit by the exam- 
ple of her sister-colonies, to adopt their improvements, and avoid 
their mistakes. She had also the benefit of the enlightened 
counsels of John and Samuel Adams, the former of whom is 

1 Journal of the Mass. Conv. of 1779-80, Appendix, No. 1. 

2 Proceedings of Mass. Conv. of 1820, p. vi., note. 



144 FIRST FEDERAL CONVJENTION. 

entitled to rank as the father of the American system of govern- 
ments, considering as well their peculiar adjustments of power, 
as the modes and processes by which they are built up. From 
the first essay, made by New Hampshire, in January, 1776, it is 
evident a great advance had been made in all respects during 
the four years ending with the adoption of the first Constitution 
of Massachusetts. At first, the people had very inadequate no- 
tions of the true methods of fundamental legislation. Having 
only the examples of their forefathers in England, in 1660 and 
1688, with a few contemporaneous imitations in the colonies, 
they were convinced the work, in their then revolutionary con- 
dition, must be initiated by Conventions, but under what condi- 
tions and limitations, they seem to have been wholly ignorant. 
By degrees, however, they came to realize what John Adams 
had taught them in May, 1775, that it was necessary " that the 
people should erect the whole building with their own hands," 
and to that end, that the Conventions called by them should be 
limited to the single function of proposing constitutional enact- 
ments, leaving it to the electors by their ^a^, pronounced through 
the ballot-box, to give to them the force and vigor of law. It 
is hardly necessary to observe, that the proceedings by which 
the Massachusetts Convention of 1779 was called, and by which 
its work was matured and confirmed by the final vote of the 
people, were strictly regular, and that, therefore, the body was 
lesfitimate as a Constitutional Convention.^ 

§ 159. There remain now to be considered those conventions 
of the revolutionary period, by which were framed and ratified 
the two Constitutions of the United States. 

We have seen that, upon the breaking out of hostilities with 
Great Britain, the several colonies, except Connecticut and 
Ehode Island, established temporary governments, by means 
of Provincial Conventions or Congresses, operating in the main 
through committees, and exercising unlimited powers. In tak- 
ing this step, they imitated the example set them by United 
America, in establishing a government for the continent by the 
Congress at Philadelphia. The contest with Great Britain had 
been opened, and, so long as the body existed, was conducted 

I For a full and most excellent account of the proceedings resulting in the 
framing of the first Massachusetts Constitution, see Works of John Adams, Vol. 
IV. pp. 213-218. 



FIRST FEDERAL CONVENTION. 145 

by the Revolutionary Congress, which met at Philadelphia on 
the 5th of September, 1774. When that body expired, there 
succeeded to its place and office the Congress which met at the 
same city on the 10th of May, 1775. To the revolutionary 
government administered by these two bodies, belonged all the 
powers needed for the successful prosecution of the war. As 
those powers, however, grew out of necessity, and not out of 
an express grant, it was found difficult to secure acquiescence 
in their exercise, except when the separate colonies were made 
tractable by imminent public dangers. To remedy this evil, it 
was early proposed to frame articles which should not only make 
the union of the colonies perpetual, but so ascertain the powers 
intrusted to the central government by written memorials, that 
cavil and disobedience should be prevented. According to Mr. 
Madison, there remains on the files of Congress, in the hand- 
writing of Dr. Franklin, a sketch of such articles, submitted by 
him to that body, as early as the 21st of August, 1775, entitled, 
" Articles of Confederation and Perpetual Union of the Colo- 
nies." But this attempt was premature, and nothing came of 
it. When Congress, in 1776, appointed a committee to draft a 
Declaration of Independence, it appointed at the same time 
another to prepare a plan of a confederation for the Colonies. 
The committee reported a plan, on the 12th of July, 1776, based 
on that sketched by Dr. Franklin, which was debated and 
amended from time to time until the 15th of November, 1777, 
when the Congress passed it and agreed to propose it to the 
States. This plan, entitled " Articles of Confederation and 
Perpetual Union between the States of New Hampshire," &c., 
&c., was finally ratified by the legislatures of the several States, 
but only after long delay, the date of the earliest ratification 
being the 9th of July, 1778, and that of the latest, the 1st of 
March, 1781. 

§ 160. Thus was effected, for the United States, the transition 
from a revolutionary condition, under a provisional government, 
to one that was, in idea, at least, fixed and permanent, under a 
written Constitution. The body by which this Constitution was 
framed, the Continental Congress, I have classed with Consti- 
tutional Conventions, but in strictness that classification is 
incorrect. That Congress was a revolutionary government, 
charged by the patriotic majority in the several colonies to see 

10 



146 FIRST FEDERAL CONYENTION. 

to it that the interests of United America received no detri- 
ment. For that purpose its powers were undoubtedly ample, 
but they did not extend to the framing of a fundamental law ; 
at least, the credentials of its members contemplated — and, 
considering the time when they were drawn up, could have con- 
templated — no such special function for that body, unless the 
framing of a Constitution should be thought to be among the 
proper means of discharging adequately the trust committed to 
it. Whatever force or validity those articles derived from the 
Congress, sprang solely from their excellence as propositions to 
be acted on by the several States, or from the force wielded by 
their proposers as a revolutionary government. They were oblig- 
atory upon no one, and, in fact, it was less the weight of the 
Congress than the urgent perils of the times that led to their 
final adoption by the States. Their real validity, as a Consti- 
tution for America, depended solely upon the ratification so 
tardily given by the constituent commonwealths. 

§ 161. The mode in which the ratification of the Articles of 
Confederation was effected, is deserving of notice, as bearing 
on the question of the legitimacy of that Constitution. It was 
ratified by the States, and not by the citizens of the several 
States or of the Union. It was by the States, speaking through 
their respective legislative assemblies. In one aspect of the case, 
this mode of ratifying those articles was the proper one, for the 
Confederation was a league of distinct commonwealths, struck 
by their ambassadors, and, therefore, to derive its force only from 
those whom the ambassadors represented. These being States, 
it was they alone that could dictate the terms upon which their 
union should subsist. The Constitution of the Confederation, 
therefore, when ratified in the manner explained, was an entirely 
legitimate one ; that is, it was proposed to the constituent bodies 
to be governed by it, and by the latter ratified and confirmed by 
an express vote ; but it was legitimate only for what it purported 
to be — a league between States, and not a national Constitution, 
in the proper sense of the term. Tested by the principles that 
should preside over the formation of a Constitution, it was, in 
its inception, not legitimate, for it wanted the sanction of the 
people, who, as distinct from their governments, are alone the 
constituents, or have power to ratify a Constitution. 

The Congress, on the other hand, considered as a Constitu- 



FIRST FEDERAL CONVENTION. 147 

tional Convention, possessed not a single one of the elements 
necessary to give it legitimacy. The people had no direct agency 
in calling it, no voice in prescribing its duties or ascertaining its 
powers, and were not directly consulted in the act of putting 
the fruit of its deliberations in force. 

§ 162. Such was the first essay of our fathers in framing a 
government for United America. The system resulting from it, 
the joint product of inexperience and State jealousy, came soon 
to merit the general contempt from its weakness. The govern- 
ment of the Confederation, from its peculiar character as a 
league between States, needed, more than one which should 
deal immediately with individuals, to be strong enough to make 
itself either respected or feared. But it failed to secure either 
fear or respect. With considerable legislative power, it had no 
distinctively judicial, and next to no executive, power. It pre- 
sented the anomaly of a government for an immense expanse 
of country, empowered to enact laws, but invested with scarcely 
any power of enforcing them. The disordered state of the 
finances, which it was utterly unable to remedy, was the proxi- 
mate cause of its collapse. The requisitions for the support of 
the government were first paid by a few of the States, the 
rest contributing nothing, and then disregarded by all alike.^ 
But, had it been the destiny of the United States to tide over 
the financial difficulties growing out of the war, a state of peace 
and prosperity would have demonstrated, more strikingly than 
one of financial distress, the utter inadequacy of its Constitution 
of government. There is scarcely a function of a good gov- 
ernment in which it would not have proved itself altogether 
wanting. 

§ 163. The immediate occasion of the steps which finally led 
to the supersession of this worthless fabric by a real Constitution, 
grew out of the absolute necessity of filling the national coffers. 
In 1781, and on several subsequent occasions, serious efforts had 
been made to induce the States to vest in Congress power to 
levy imposts on imported goods, for the purpose of raising the 
necessary public revenue. But they had all been vain. At 

1 Attorney- General Randolph, in arguing before the Supreme Court of the 
United States the case of Chisholm's Executors vs. The State of Georgia, wit- 
tily characterized the Confederation, in view of the facts stated in the text, as 
•' a government of supplication." 2 Dall. R. 419. 



148 ANNAPOLIS CONVENTION. 

length, on the 21st of January, 1786, the House of Delegates of 
Virginia appointed eight commissioners, to meet such others as 
might be appointed by the other States, at a time and place to 
be agreed upon, with instructions " to take into consideration 
the trade of the United States .... to consider how far a uni- 
form system in their commercial regulations may be necessary ; 
and to report to the several States such an Act relative to this 
great subject, as, when unanimously ratified by them, will ena- 
ble the United States in Congress assembled effectually to pro- 
vide for the same ; that the said commissioners shall immediately 
transmit to the several States copies of the preceding resolution, 
with a circular letter requesting their concurrence therein, and 
proposing a time and place for the meeting aforesaid." ^ 

This resolution was the origin of what is known as the Annap- 
olis Convention ; the instructions to the Virginia commissioners 
being carried out by them and delegates, according to their invita- 
tion, assembling from several of the States at Annapolis, the 
place named for the purpose by the commissioners. Toward the 
object for which it was assembled, the Annapolis Convention did 
nothing directly, only five of the States responding to the call ; 
but it gave expression to its " unanimous wish, that speedy 
measures may be taken to effect a general meeting of the States 
in a future Convention, for the same and such other purposes as 
the situation of public affairs may be found to require." The 
delegates then stated that, in their opinion, " the idea of extend- 
ing the powers of their deputies to other objects than those of 
commerce, which has been adopted by the State of New Jersey,^ 
was an improvement on the original plan, and will deserve to 
be incorporated into that of a future Convention." They fur- 
ther recommended " a Convention of deputies from the different 
States, for the special and sole purpose of entering into this 
inquiry, and digesting a plan for supplying such defects as may 
be discovered to exist ; " and that the Convention meet on the 2d 
Monday in May, 1787, at Philadelphia, " to take into considera- 
tion the situation of the United States, to devise such further 
provisions as shall appear to them necessary to render the Con- 

1 Ell. Del., Vol. I. pp. 93-100. 

2 New Jersey had instructed her delegates to the Annapolis Convention " to 
consider how far a uniform system in their commercial regulations and other impor- 
tant matters might be necessary." 



RECOMMENDATIONS OF THE ANNAPOLIS CONVENTION. 149 

stitution of the Federal government adequate to the exigencies 
of the Union,' and to report such an act for that purpose to the 
United States in Congress assembled, as, when agreed to by 
them, and afterwards confirmed by the legislatures of every 
State, will effectually provide for the same." 

Having published the above recommendations, the Conven- 
tion adjourned, September 14, 1786. 

§ 164. The two documents mentioned in the last section — 
the instructions to the Virginia delegates and the recommenda- 
tions of the Annapolis Convention — evidently contemplated noth- 
ing more than an amendment of the Articles of Confederation, 
in the main according to the mode pointed out by the thirteenth 
of those Articles. The course of action recommended by the 
first, however, involved a variation from that mode in one par- 
ticular not contained in the second, namely, in that it required 
the act relative to trade regulations, which the commissioners 
might mature, to be reported " to the several States," and to take 
effect " when unanimously ratified by them." The Annapolis 
Convention, on the other hand, recommended that the Conven- 
tion to meet at Philadelphia in May following, should " report 
such an Act " in regard to the interests of the Union, therein 
mentioned, " to the United States, in Congress assembled, as, 
when agreed to by them and afterwards confirmed by the legis- 
latures of every State," would " effectually provide for the same." 
In other words, the Virginia instructions proposed to amend the 
Articles of Confederation by referring the new or additional Arti- 
cles to only one of the sources of authority prescribed by the 
Articles themselves, that is, to the States, omitting " the Con- 
gress of the United States," which body, by the 13th Article, 
was first to agree upon them. In this respect, the recommenda- 
tions of the Annapolis Convention are free from objection, since 
the course pointed out by that body for securing amendments 
to the Articles was in scrupulous conformity to the 13th Article, 
except that they went further than the latter in proposing to call 
a Convention to frame such amendments in the first instance — 
a step not provided for in the 13th Article. Indeed, that Article 
contained no indication of the persons by whom amendments 
to the Articles should or should not be suggested or proposed, 
but required only that they should be agreed to and confirmed 
in a particular manner, that is, first, by the Congress, and then 
by the State legislatures. 



150 ' SECOND FEDEEAL CONVENTION. 

§ 165. From these seeds sprang the Federal Convention of 
1787, by which was framed the present Constitution of the 
United States. 

The recommendations of the Annapolis Convention having 
been communicated by letter to Congress, that body, on the 
21st of February, 1787, passed the following preamble and reso- 
lution : — 

" Whereas, there is provision in the Articles of Confederation 
and Perpetual Union for making alterations therein, by the 
assent of a Congress of the United States and of the legisla- 
tures of the several States ; and, whereas, experience hath evinced 
that there are defects in the present Confederation, as a means 
to remedy which several of the States, and particularly the State 
of New York, by express instructions to their delegates in Con- 
gress, have suggested a Convention for the purposes expressed 
in the following resolution ; and such Convention appearing to 
be the most probable means of establishing in these States a 
firm national government, — 

" Resolved, That, in the opinion of Congress, it is expedient 
that, on the 2d Monday in May next, a Convention of delegates, 
who shall have been appointed by the several States, be held at 
Philadelphia, for the sole and express purpose of revising the 
Articles of Confederation, and reporting to Congress and the 
several legislatures such alterations and provisions therein as 
shall, when agreed to in Congress and confirmed by the States, 
render the Federal Constitution adequate to the exigencies of 
government and the preservation of the Union." ^ 

In pursuance of this resolution, delegates were chosen and 
met at Philadelphia on the day appointed, and by them was 
matured, in a session of something over four months, the pres- 
ent Constitution of the United States. The first State to act 
upon the resolution was Virginia, 'whom all the other twelve 
States followed in the course of a few months, and before the 
assembling of the Convention, except New Hampshire, Con- 
necticut, and Maryland, whose delegates were appointed and 
accredited after that body had been organized at Philadelphia. 

§ 166. The question as to the legitimacy of the Federal Con- 
vention, in the sense in which I have defined that term,^ is not 
a difficult one to answer. 

1 Ell. Deh., Vol. I. pp. 119, 120. 

2 See §§ 105-108, ante. 



SECOND FEDERAL CONVENTION. 151 

There being, as I have shown, in the Articles of Confedera- 
tion, no specification of the persons by whom, or of the mode 
in which, alterations of those Articles should be proposed^ but 
only of the manner in which they should he ratified and estab- 
lished, some range was left to the people of the Union for a 
choice both of persons and mode. The only limitation, indeed, 
upon their action, was, that whatever mode and whatever per- 
sons should be employed, there should be a substantial con- 
formity to the principles presiding over the genesis of Constitu- 
tions, digested in a former chapter, of which the most important 
are, first, that the work shall be committed to a Convention, 
commissioned by the existing government, for the sole and ex- 
press purpose of accomplishing that work ; and, secondly, that 
to the sovereign body shall be accorded an opportunity fully and 
freely to express its will in relation to the call of such Conven- 
tion. 

That the Federal Convention conformed to the first of these 
principles, in all essential particulars, is beyond question. It 
was made up of delegates appointed by the legislatures of the 
several States, assembling, on the basis of federal equality, for 
the sole and express purpose of proposing such alterations of 
the existing Constitution as should make it adequate to the exi- 
gencies of government and the preservation of the Union. 

It, also, in my judgment, conformed substantially to the sec- 
ond. The sovereignty of the Union, as then constituted, resided 
in the people of the United States, either as a unit or as distin- 
guished into groups under the name of States. Hence, it is 
evident that when the Congress, which represented the sovereign 
as a unit, recommended and called the Convention, and the 
State legislatures, which collectively represented that sovereign 
as distinguished into the groups known as States, acceded to 
that recommendation and appointed delegates to the Conven- 
tion, nothing more could be needed to show that the call of that 
body was made with the assent, if it was not directly the act, 
of the sovereign authority of the Union. 

Whether or not, in any of its acts, that Convention exceeded 
its jurisdiction, assumed revolutionary powers, and thus, so far, 
divested itself of its original character as a Constitutional Con- 
vention ; whether or not, in other words, the Constitution pro- 
posed by it was the fruit of a fair exercise of the powers in- 



152 EATIFYING CONVENTIONS. 

trusted to it, or, on the other hand, was the offspring of violated 
instructions, of usurpation, is a different question, which will be 
considered further on.^ 

§ 167. The Conventions of the eleven States which ratified 
the Federal Constitution, previously to its establishment in 
March, 1789, — the onlyremaining ones held during the Revolu- 
tionary period, — were all regularly called by the legislatures of 
their respective States.^ The same may be said of the two Con- 
ventions which ratified that Constitution subsequently to its 
establishment — those of North Carolina and Rhode Island — 
as well as of the Convention of the independent republic, Ver- 
mont, whose ratification was dated January 10th, 1791. 

The only observation I deem necessary respecting these Con- 
ventions is, that they differ from the great bulk of the Conven- 
tions held in the United States, in that their function was, not 
to mature, but to adopt and establish, a code of organic law. 
Doing this, however, under special instructions, I have consid- 
ered those bodies as belonging to the class of Constitutional 
Conventions. This mode of enacting Constitutions has been 
practiced by several of the States. Under the first Constitution 
of Pennsylvania, and under all those of Vermont, constitutional 
changes have been recommended by bodies called Councils of 
Censors, and then passed upon by Conventions called for that 
express and only purpose. What has in those States been a 
matter of Constitutional regulation, has in several instances 
occurred in other States, generally, and perhaps always, without 
special authorization in the fundamental law. Thus, the second 
Constitution of the State of Georgia was framed by a Conven- 
tion which assembled in 1788, and was submitted for adoption to 
two Conventions held in 1789, by one of which certain amend- 
ments to the plan were proposed, and by the other were rati- 
fied and established.^ In a few cases a similar use has been 
made of Conventions in new States, to give the sanction of 
such States, in a solemn and authentic form, to amendments to 
their Constitutions demanded by Congress as conditions of their 
admission into the Union. Such Conventions were those of 

1 See §§ 383-386, post. 

2 See Appendix A, for a list of these bodies. 

3 See § 148, a7Ue. 



OBSERVATIONS UPON THE FOREGOING CONVENTIONS. 153 

Michigan, of 1836, (two Conventions,^) of Iowa, of 1846, of 
West Virginia, of 1861-3, (final session,) and others ; some of 
which, however, were not newly-elected Conventions, but those 
previously in session for the usual purpose, but subsequently 
reassembled to give the sanction of the State to the conditions 
indicated. In regard to these latter instances, the only question 
as to the regularity of the Conventions depends on the power 
of the legislative bodies calling them to give them the right of 
definitive legislation, involved in the act of passing thus upon 
a fundamental law, — a subject which will be considered in 
another part of this work.^ 

§ 168. Respecting the principal Conventions of the Revolu- 
tionary period, two or three observations should be made, to 
prevent misconceptions. 

1. Considerable stress has been laid, in the preceding sections, 
upon the fact, that most of the Conventions of that class were 
revolutionary, either in their origin or in their methods of pro- 
cedure, or in both. This imputation against the character of 
those bodies, however, is not intended as an impeachment of 
them as having no basis in political necessity, but only as a 
denial to them of regularity and legality as Constitutional Con- 
ventions. Those bodies were irregular, from the nature of the 
case, for they came in to supply the hiatus caused by the subsi- 
dence of regular governments in the several colonies. The old 
organizations being broken up, the elements were forced to seek 
new combinations, and, to that end, to find somewhere new 
centres about which to arrange themselves according to their 
several affinities. The Conventions, originating in popular 
movements, semi-official, semi-spontaneous, were those centres. 
The wonder is, not that there were irregularities, judging by the 
standards of peace and established order, but that the aberra- 
tions were not greater and more numerous. 

2. But, it may be asked, why insist so strenuously upon the 
fact that the Conventions of the Revolutionary period were revo- 
lutionary bodies, if it be admitted that they were grounded upon 
an imperious necessity, and that from them, as from a fountain, 
has flowed the present order of things, confessed to be legiti- 
mate ? The answer is, because, if they are truly revolutionary 

1 See §§ 202-204, post. 

2 See §§ 480-486, j9os^ 



154 CONVENTIONS OF THE SECOND CLASS. YAEIETIES OF. 

bodies, they must be set down as such, in order that their action 
may not be drawn into precedent, as that of normal Constitu- 
tional Conventions. If, with reference to the colonial establish- 
ments founded by the crown, those Conventions and the proceed- 
ings of those Conventions were not revolutionary, then, neither 
would similar Conventions and proceedings, antagonistic to the 
now existing order, be revolutionary with respect to that order. 

§ 169. 3. If, in any particular, relating to their initiation or 
to their procedure, the Conventions of the revolutionary period 
should seem to be more irregular than was necessary, it should 
be remembered that much of their irregularity was due to the 
dangers of the times, and much to the ignorance and inexperi- 
ence of those who managed them. While the foundations of 
'our civil polity were being laid, our fathers were staggering 
under the burdens of a long war, replete with public and pri- 
vate disasters. For the public safety, it was often found neces- 
sary to omit some of those forms by which regular governments, 
in times of peace and order, are accustomed to ascertain the 
public will. Moreover, the process by which the purely Revolu- 
tionary Conventions, theretofore known, were gradually adapted 
to a defined constitutional purpose, was then just commencing. 
The absolute necessity, afterwards so well understood, of lim- 
iting the Constitutional Convention to its special function, in 
subordination to the government to which it is ancillary, was 
very imperfectly recognized. Hence, as we have seen, the Con- 
ventions generally throughout the War of Independence united 
in themselves functions proper only for bodies vested temporarily 
with dictatorial powers — for those provisional organizations, 
which, in times of crisis, are, for the public safety, or to forward 
the purposes of ambition, intrusted with a revolutionary dis- 
cretion, incompatible with the existence of any other govern- 
ment. 

§ 170. (b). The second and most numerous class of Conven- 
tions consists of such as have been assembled since the Federal 
Constitution went into operation, on the 4th of March, 1789, 
and they may be divided into these three principal varieties : — 

1. Such as have been convened for the purpose of framing 
Constitutions for new States to be formed within the territorial 
jurisdiction of States already members of the Union. 

2. Such as have been called to frame Constitutions for new 



CONVENTIONS OP THE FIRST VAEIETY. 155 

States to be formed out of territory of the United States, organ- 
ized under its authority, or acquired in an organized condition 
from foreign States. 

3. Such as have been assembled for the revision of the Con- 
stitutions of States, members of the Union. 

It will be the chief purpose of what remains of this chapter 
to bring into view these several varieties of Conventions, in 
order to ascertain how far the modes in which they were called 
or initiated conform to the principles enunciated in the opening 
sections of this chapter. 

§ 171. 1. Of the first variety of Conventions enumerated, 
there have been held, up to the present time, reckoning the first 
Convention of Vermont, which may with propriety be classed 
with them, though held previously to 1789, five Conventions :^ 
those which framed the first Constitutions of Vermont, Ken- 
tucky, Tennessee, Maine, and West Virginia. 

The first clause of the 3d section of the 4th Article of the 
Federal Constitution provides, that " no new State shall be 
formed or erected within the jurisdiction of any other State, 
nor any State be formed by the junction of two or more States 
or parts of States, without the consent of the legislatures of the 
States concerned, as well as of the Congress." To render a 
Convention legitimate, therefore, for the purpose of erecting a 
new State within the jurisdiction of any other State or States, 
under this clause, three things must concur : first, the prior con- 
sent of the legislature of the State or States out of which the 
new one is to be carved ; second, that of the Congress of the 
United States ; and, third, that of the inhabitants or people of 

1 The territory now comprised in the State of Vermont was, at the time she 
declared her indeiDendence, claimed by the State of New York. It was not 
until October 17th, 1790, after the formation of the present Constitution of the 
United States, that New York consented to her erection into a new State. She 
was admitted into the Union in 1791, after she had maintained her indepen- 
dence against the State of New York and the United States for fourteen years. 
As Vermont was erected into an independent State and admitted into the 
Union, therefore, with the consent of New York, and, of course, of Congress, 
the conditions required by the Federal Constitution seem to have been fulfilled. 
For the details of the action of Vermont herself, see ante, §§ 154, 155. The 
consent of New York was given through commissioners appointed by that State, 
on the 1 7th of October, 1 790, Vermont paying to New York for a relinquish- 
ment of all claim, as well of soil as of jurisdiction, the sum of thirty thousand 
dollars. 



156 CONVENTIONS OP THE PIEST VAEIETY. 

the proposed State. The first and second of these requisites 
follow from the terms of the constitutional provision, and the 
third, I think, from the reciprocity of right and obligation sub- 
sisting between the several portions of a State. Each of these 
owes obedience, or a quasi allegiance to the parent State, and, 
in return, is entitled to protection, which excludes the idea that 
the State, as a whole, can rightfully sever from connection with 
itself a part thereof, without its consent. 

§ 172. Before the adoption of the Federal Constitution, no 
rule upon this subject existed, and an attempt to dismember a 
State, however conducted, would have been revolutionary. The 
case of Vermont, before referred to, exhibits the embarrassments 
to which such a condition of things was likely to give rise. 
There were many years during which the troubles between that 
State and New York threatened to breed a civil war, not be- 
tween those States alone, but between those States and such 
allies as they might respectively secure.^ The clause of the 
Federal Constitution, above cited, was intended to obviate the 
dangers foreseen, if a system were established, permitting no 
changes in the territorial extent of the States, or allowing them 
to be consummated without the consent of Congress. And yet, 
as was perhaps to be expected, not a single instance of the dis- 
memberment of a State has ever occurred, under the clause 
quoted, without proceedings more or less irregular or revolu- 
tionary. By this is not meant, that the final Acts by which the 
new States have been erected, have in any case come short of 
conforming substantially to the constitutional provision, but, 
either that the consent of the parent States has been wrung 
from them by the pressure of events — perhaps, secured by 
political advantages accepted as the price of that which must 
be yielded at all events — or the Conventions, by which the 
initiatory movements have been conducted, have been illegally 
called, and so have been, in character, revolutionary. 

^ No native of Vermont would willingly charge the revolutionary leaders of 
that State with entertaining seriously the project of forming an alliance with 
Great Britain against New York and the other twelve colonies. But it cannot 
be denied, that they at least coquetted, in a very imprudent manner, with the 
British generals; and, had the policy, so long pursued by Congress under the 
inspiration of New York, of practical hostility to Vermont, been continued, that 
little Commonwealth might have been driven to seek, in a detested alliance with 
a common enemy, that freedom which was denied her by those of her own 
household. 



KENTUCKY CONVENTION OF 1792. 157 

§ 173. After Vermont, the first State erected within the juris- 
diction of another State, was Kentucky. As this case occurred 
after the Federal Constitution had gone into operation, it is 
worthy of attentive consideration, as the earliest in which an 
application could be made of the constitutional provision in 
question. 

That part of Virginia, now composing the State of Kentucky, 
was separated from the older portions of the State by interven- 
ing mountains. When the war of the Revolution was con- 
cluded, the financial distresses common to Virginia and to all 
the States of the Union caused the infant settlements west of 
the mountains to be neglected. The hostile tribes of Indians 
on their southern and western frontiers, took advantage of their 
defenceless condition, and were repressed by the settlers only 
with great difficulty, and at their own cost. In the fall of 1784, 
the exigencies of the public defense called together an assem- 
blage of citizens at Danville, Kentucky, the danger to be guarded 
against being an attack by the Cherokee Indians. On consul- 
tation, it was found that they had no power to raise forces, or 
to do any thing to protect themselves, and it was therefore re- 
solved to call a Convention of the entire Kentucky district. To 
constitute that body, the assemblage addressed the people in a 
circular letter, in which it was recommended to each militia 
company in the district to elect, on a day named by the assem- 
blage, one representative, to meet in Danville, on the 27th of 
December, 1784, to take into consideration the important subject 
of self-defense. The Convention met at the time appointed, and 
then, the subject of a separation from Virginia being broached, 
they voted in favor of it by a large majority. Another Conven- 
tion followed in May, 1785, at which a similar expression of 
opinion was made, and resulted in a petition to the Assembly 
of Virginia for liberty to form a new State.^ A third Conven- 
tion, which met in August of the same year, having commenced 
its proceedings by a unanimous vote in favor of the project of 
separation, the Assembly of Virginia, at its session in Novem- 
ber, 1785, passed an Act, authorizing the election of five dele- 
gates from each of the seven counties of Kentucky, to take into 
consideration the forming an independent government. Should 
the Convention determine upon it, separation was assented to, 
1 Hildreth, Hist. U. S., Vol. HI., 1st Series, p. 457. 



158 KENTUCKY CONVENTION OF 1792. 

provided Congress, before the first of June, 1787, would admit 
the new State into the Union ; and provided further, that Ken- 
tucky would agree to assume her proportion of the Virginia 
debt.i 

§ 174. The Convention thus authorized by the Virginia As- 
sembly, was prevented by an expedition against the Indians 
north of the Ohio, from meeting, except in numbers less than a 
quorum ; but an application to Virginia, on the part of such 
members of the Convention as had met at the time appointed 
(September 17, 1786), resulted in a new Act of the Virginia 
Assembly, authorizing a new Convention, to be held the follow- 
ing year.2 Accordingly, on the 17th of September, 1787 — the 
very day on which the Federal Convention closed its labors at 
Philadelphia — a fifth Convention met at Danville, Kentucky, 
resolved unanimously in favor of separation from Virginia, 
adopted an address asking admission into the Union, and, in 
conformity to the provisions of the Act under which they met, 
directed the election of a new Convention to frame a State 
Constitution.^ 

These Acts and proceedings seem to have been attended by 
no results ; for, on the 18th of December, 1789, another Act was 
passed by Virginia, proposing terms of separation, which were 
accepted by a Convention, which met on the 26th of July, 1790, 
the separation to take effect on the 1st of June, 1792. Finally, 
this Convention resolved, that in December, 1791, an election 
should be held for forty-five representatives to form a Constitu- 
tional Convention, to be elected under certain restrictions as to 
residence, by the free male inhabitants of each county, above the 
age of twenty-one years, the Convention to be held at Danville 
on the first Monday in April, 1792. At the time and place 
appointed this Convention met, and by it was framed the first 
Constitution of Kentucky, to take effect, as above stated, on the 
1st day of June, 1792. In the mean time, on the 4th of February, 
1791, an Act had been passed by Congress, declaring the con- 
sent of that body, that a new State, by the name of Kentucky, 
might be formed within the jurisdiction of the Commonwealth 
of Virginia,* and admitting the same into the Union, the Act to 

1 Hildreth, Hist. U. S., Vol. III., 1st Series, p. 470. 

2 Id. pp. 470-1. 

3 Id. p. 529. 

^ 1 U. S. Stat, at Large, p. 189. 



TENNESSEE CONVENTION OP 1796. 159 

take effect on the same day as the Constitution. Thus Ken- 
tucky became, from a district of the State of Virginia, a State 
in the Union. 

Of the proceedings above detailed, nothing can be said to 
impeach the substantial regularity. The three requisites thereto, 
described in a foregoing section, undoubtedly concurred at the 
time of the admission of the State into the Union. There was, 
however, in the earlier stages of the agitation which led to it, a 
degree of opposition on the part .of Virginia, which, had it not 
been modified by other influences, would probably haye flamed 
into actual hostilities. At the time the consent of Congress was 
procured to the separation of Kentucky from Virginia, the ques- 
tion of the location of the capital of the United States had 
assumed such importance that it led to combinations of inter- 
ests otherwise widely opposed. By the aid of those northern 
members who favored the admission of Vermont, the Southern 
States of the Union were enabled to effect a compromise by 
which that State and Kentucky came in together, and the capi- 
tal was located on the Potomac instead of farther north, on the 
Susquehanna, or the Delaware. 

§ 175. While Kentucky was thus preparing herself for admis- 
sion into the Union, Tennessee was undergoing an experience 
somewhat similar. Originally a part of North Carolina, the 
difficulties experienced by the latter in defending her, or even 
in administering government over her, led to such neglect, that 
early in the course of the war with England, Tennessee had 
set up an independent government, in defiance of the parent 
State, called herself the State of Frankland, elected a governor 
and other State officers, and prepared by arms to maintain her 
independent position. This rebellion was quelled, but the causes 
of it still operated, and finally resulted, after a series of transi- 
tions, about to be explained, in the admission of the district into 
the Union as the State of Tennessee. 

The first act of importance in her history, after the suppres- 
sion of the State of Frankland, was the passage by the legisla- 
ture of North Carolina of an Act proposing, upon certain con- 
ditions, the cession to the United States of her western territory, 
now known as Tennessee — the motives leading to the cession 
being in the preamble declared to be, the repeated and earnest 
recommendation of Congress, made with a view to the pay- 



160 TENNESSEE CONVENTION OF 1796. 

ment of the public debts and to the establishing of the harmony 
of the United States, and the desire of the inhabitants of such 
Western territory, that the cession should be made, " in order 
to obtain a more ample protection than they have heretofore 
received." Amongst the conditions of this proposed cession, 
the fourth, and, for our purpose, the most important, was as 
follows : — Provided, " That the territory so ceded shall be laid 
out and formed into a State or States, containing a suitable extent 
of territory, the inhabitants of which shall enjoy all the privi- 
leges, benefits, and advantages set forth in the Ordinance of 
the late Congress for the government of the western territory 
of the United States." i 

By the same Act, the senators of the State of North Carolina, 
in Congress, were required to execute a deed of cession of the 
said territory, upon the conditions therein expressed, which was 
done, by a deed bearing date the 25th of February, 1790. 

§ 176. A few days after the execution of the deed of cession, 
an Act was passed by Congress, approved April 2d, 1790, accept- 
ing the cession upon the conditions imposed.^ In May of the 
same year, Congress passed a second Act, for the government 
of the ceded territory, providing, that it should constitute a single 
district ; that the inhabitants should enjoy all the privileges, bene- 
fits, and advantages set forth in the Ordinance of the late Con- 
gress for the government of the territory northwest of the Ohio ; 
and that the government of said territory should be similar to 
that which was then exercised," &c., &c.^ 

It is im.portant now to note the provisions of the " Ordinance 
of the late Congress," thus variously designated as passed for 
the government of " the Western territory of the United States," 
and of " the territory Northwest of the Ohio," commonly known 
as "the Ordinance of 1787," so far as those provisions have a 
bearing on the construction of the deed of cession. That Ordi- 
nance, in the 5th Article of the part of it styled " the Compact," 
after providing for the division of the territory, covered by it, 
into not less than three nor more than five States, prescribes, 
that " Whenever any of the said States shall have sixty thousand 
free inhabitants therein, such State shall be admitted, by its dele- 

^ \ U. S. Stat, at Large, pp. 106-109. 

2 Ibid. 

S Id. p. 123. 



TENNESSEE CONVENTION OF 1796. 161 

gates, into the Congress of the United States, on an equal foot- 
ing with the original States in all respects whatever, and shall 
be at liberty to form a permanent Constitution and State gov- 
ernment ; provided, the Constitution and government, so to be 
formed, shall be republican, and in conformity to the principles 
contained in these articles, and, so far as it can be consistent 
with the general interest of the Confederacy, such admission 
shall be allowed at an earlier period, and when there may be a 
less number of free inhabitants in the State than sixty thousand." 

This Ordinance, though adopted before the establishment of 
the Federal Constitution, and so, perhaps, in effect, repealed by 
that Act, was afterwards expressly revived by the Congress 
under the new Constitution, without any changes, except merely 
such as were necessary to adapt it to the altered state of things.^ 
The right of admission into the Union, therefore, guaranteed by 
this Ordinance to the inhabitants of the territory northwest of 
the Ohio, was, by the effect of the deed of cession and of the 
Act of Congress accepting the same, incorporated into that deed, 
and became the right of the inhabitants of the Tennessee terri- 
tory. 

§ 177. The question whether the territory, thus ceded, should 
form one or more than one State, being left undecided, so that 
it could not be known when the contingency of there being 
sixty thousand free inhabitants, within the meaning of Congress, 
had happened, there was evidently room for a disagreement be- 
tween that body and the Territory, or some portion of it, claim- 
ing admission into the Union as its right under the deed of 
cession. Such a disagreement actually arose, and was followed 
by a protracted and angry controversy, of which the effects are 
not entirely unfelt to this day. 

§ 178. In July, 1795, the Territorial legislature of Tennessee 
ordered a census of the whole Territory to be taken, for the pur- 
pose of ascertaining whether there was the requisite number of 
inhabitants to entitle her to admission into the Union, according 
to the Ordinance of 1787 and the deed of cession. The Act 
for this purpose provided, that " if it should appear that there 
were sixty thousand inhabitants, counting the whole of the free 

1 1 t/. S. Stat, at Large, p. 50. That the adoption of the present Constitution 
did repeal the Ordinance, has been expressly held by the Supreme Court of the 
United States. Stradev v. Graham, 10 How. (U. S.) R. 82. 
11 



162 TENNESSEE CONVENTION OF 1796. 

persons, including those bound to service for a term of'years, 
and excluding Indians not taxed, and adding three-fifths of all 
other persons, the Governor be authorized and requested to rec- 
ommend to the people of the respective counties, to elect five 
persons for each county to represent them in Convention, to 
meet at Knoxville, at such time as he shall judge proper, for the 
purpose of forming a Constitution or permanent form of govern- 



ment, 



"1 



The census was taken in the autumn of 1795, and the result 
was, that there were declared to be 77,262 inhabitants, of whom 
10,613 were slaves. In November, 1795, the Governor announced 
this result, and, in pursuance of the Act for that purpose, called 
on the people to elect delegates to a Convention to frame a Con- 
stitution, to meet at Knoxville on the 11th of January, 1796. 
Accordingly, a Convention was elected, and met there on that 
day, consisting of fifty-five members, five from each of the 
eleven counties, and, on the 6th of February following, adopted 
the first Constitution of Tennessee. A copy of this Constitu- 
tion was, on the 19th of the same month, forwarded by the Gov- 
ernor of the Territory to the President of the United States, with 
a notification that on the 28th of March, at which time the 
General Assembly of the State of Tennessee would meet to 
act on the Constitution, the temporary government established 
by the Congress would cease. This copy and notification, with 
accompanying documents, were received by President Washing- 
ton on the 28th of February, and by him were, on the 8th of April, 
communicated to Congress. The claim of Tennessee to admis- 
sion, based upon the provisions of the Ordinance of 1787, did 
not receive from that body a ready or an unquestioned assent. 
After an energetic discussion, however, an Act for the admission 
of the State was, on the 6th of May, 1796, passed by a vote of 
43 to 30, and was approved by the President on the first of June 
following, to take efiect immediately. 

§ 179. The grounds of the opposition, which, in the Senate 
especially, was strenuous, were briefly as follows : That the 
compact, under which admission was claimed, was capable of 
two constructions : one, that so soon as sixty thousand free 
inhabitants should be collected within the Territory, they should 
be entitled to a place in the Union as an independent State ; 
1 Parton's Life of Andrew Jackson, Vol. I. pp. 169, 170. 



TENNESSEE CONVENTION OP 1796. 163 

the other, that Congress must first lay off the territory into one 
or more States, according to a just discretion, defining the same 
by bounds and limits ; and that the admission of the States 
thus defined should take place as their population respectively 
amounted to the number of free inhabitants mentioned ; that 
is, that the sixty thousand could not claim admission into the 
Union, unless they were comprised within a State whose terri- 
torial limits had been previously ascertained by an Act of Con- 
gress ; that the latter construction was the preferable one, be- 
cause it was conformable not only to the spirit, but to the letter 
of the Ordinance and deed of cession, which contemplated the 
erection of Tennessee into " one or more States," as Congress 
might determine ; that the Territory of Tennessee had no other 
or greater rights than had the Territories northwest of the Ohio, 
for whom the ordinance had been expressly enacted ; and it could 
not be pretended that the latter would be entitled to admission 
into the Union as one State so soon as their population should 
amount to sixty thousand, because the Ordinance itself divided 
that country into three separate and distinct States, each of 
which must contain sixty thousand free inhabitants before it 
could claim to be received ; that the action of Congress upon 
the question now would be regarded and followed hereafter as 
a precedent, and hence it was of the utmost importance that no 
sanction should be given to any proposition which expressly or 
even impliedly admitted that the people inhabiting either of the 
territories of the United States could, at their own mere will 
and pleasure, and without the declared consent of Congress, 
erect themselves into a separate and independent State ; that 
the provision of the Ordinance relating to the admission of new 
States, when there should be sixty thousand free inhabitants 
within their respective limits, evidently contemplated the taking 
of a census, and as Congress were to act upon the result of such 
census, it was more proper that it should be taken in pursuance 
of its own order than by that of a community whom interest 
might lead to exaggerate its numbers, and whose report, there- 
fore, if accurate, would be received with distrust ; and, finally, 
that there was reason to doubt the accuracy of the count taken 
by the territorial government, since its orders required the sher- 
iffs of the several counties to include in their enumeration all 
persons within their respective limits within the period allowed 



164 TENNESSEE CONVENTION OF 1796. 

for making it, which was two months ; hence, that the same 
men might have been counted in several counties, nay, in every 
county in the Territory, and that without any intentional fraud.^ 
§ 180. On the other hand, the friends of the bill contended, 
that the people of Tennessee became, ipso facto^ a State, the 
moment they numbered sixty thousand free inhabitants, and 
that it became the duty of Congress, as part of the original 
compact, made at the time the Territory was ceded to the United 
States, to recognize them as such, and to admit them into the 
Union, whenever satisfactory proof was furnished to them of 
that fact ; that, to the objections, that, previously to the proof of 
that fact being given, it was necessary that Congress should 
have laid out and formed that territory into " one or more 
States," and that the proof of their number should have been 
given under direction and by order of Congress, the people being 
incompetent to give that proof themselves, it was a sufficient 
answer that both those objections supposed a construction of 
the Ordinance of 1787 and of the deed of cession, which was 
inadmissible, since it rendered that compact binding upon one 
party and not upon the other ; that it was absurd to suppose 
that that Ordinance, whose object it was to establish the princi- 
ples of a free government, and to determine with certainty the 
conditions of the admission of new States into the Union, had 
made the time when those people were to enjoy that govern- 
ment and be admitted as a member of the Union depend, not 
on the contingency of their having sixty thousand free inhab- 
itants, but on certain Acts of Congress ; in other words, on the 
sole will of Congress ; that either it must be conceded that their 
admission depended solely on the condition of the compact 
being fulfilled, to wit, their having the population required, or 
it must be declared that it rested on another act, which might 
be done or refused by the other party ; that, as to the return of 
the number of inhabitants, no mode had been fixed by the com- 
pact how that number should be determined, but, as by the Acts 
of Congress establishing temporary governments in the territory 
affected by the Ordinance of 1787, whenever they should have 
respectively five thousand inhabitants, the governors of the Ter- 
ritories were especially authorized to cause the enumeration to 

1 Benton's 4&r. Deb. in Cong., Vol. I. pp. 754-759 ; Id. Vol. XII. p. 751. See 
also Scott V. Jones, 5 How. (U. S.) R. 37S. 



TENNESSEE CONVENTION OF 1796. 165 

be made, there could be no doubt the same course was to be 
pursued with respect to their qualifications for becoming mem- 
bers of the Union ; that, at most, it was merely a question of 
evidence; and, if no mode had been presented for taking the 
enumeration, it only made it more difficult for Congress or the 
territory to be satisfied of the fact of their having the requisite 
number, but that it could not affect the right ; that, instead of 
caviling at the mode of proof, Congress ought to address itself 
to the task of weighing the evidence which the parties interested 
had collected and brought forward ; that it would be well to 
consider the consequences of refusing, at that time and under 
those circumstances, to receive Tennessee into the Union ; that, 
if it was desired to establish a temporary government there, it 
was doubtful whether that could be accomplished, for the peo- 
ple believed that in changing their government they only exer- 
cised a right which had been secured to them by a sacred 
compact, and, under that belief, they would be disposed to 
defend it.^ 

§ 181. Respecting the illegitimacy of the first Tennessee Con- 
vention, there can be, in my judgment, no doubt. Saying noth- 
ing of the possible inaccuracy or falsification of the census, in 
fact, the cardinal objection remains, that one of the two parties 
expected to act officially upon the result of it, could not know 
that it was not fraudulent. It was taken by that one of the two 
parties which was alone interested to make the enumeration as 
great as possible. The probability of an honest count would 
have been much greater had it been made under the direction 
and superintendence of Congress. 

Again : The Convention was called without an enabling Ast 
of the body in whom was lodged, practically, the sovereignty of 
the Union, so far as relates to the Territories, — the Congress 
of the United States. The purpose of that Convention was 
to initiate a change in the mode and instrumentalities in and 
through which the sovereign body of the Union should exercise 
over the Territory of Tennessee its rights of sovereignty; that is, 
a change which should divest Congress of its jurisdiction to 
make local laws for the Territory, and give that power to a polit- 
ical organization, to be erected within the latter by the people 
thereof. Such a change involved the exercise of sovereignty, 
1 Benton's Abr. Deb. in Cong., Vol. I. pp. 754-759. 



166 TENNESSEE CONVENTION OF 1796. 

and could be effected only by the interposition of the sovereign 
body acting through some one of its recognized agents, forming 
the government of the Union.^ 

§ 182. Moreover, the argument of those who favored the ad- 
mission of Tennessee, to the effect that, the right a^ some time 
to be admitted into the Union being conceded, the Territory 
would be legally justifiable in forcing her way into the Union, 
if Congress should neglect to take steps to admit her, whenever 
the right should have in fact accrued, is wholly unfounded. Un- 
doubtedly, if Congress were, without good cause, to refuse, upon 
any conditions, to admit a Territory entitled to admission, such 
refusal would be an abuse of power, and if persevered in to a 
sufficient length, might justify or necessitate a revolution. But 
the right to admit involves the right to refuse to admit, at least, 
within certain limits, as, until prescribed conditions are not only 
in fact fulfilled, but can be ascertained to have been fulfilled. 
Whether a Territory shall be admitted or not, is largely a ques- 
tion of expediency with reference to the national interests, and 
of that expediency the national legislature is, by the Federal 
Constitution, made the exclusive judge. In exercising its dis- 
cretion, that body might act ignorantly or factiously, but it 
could hardly be said to act unconstitutionally ; and no Territory 
could be justified, on constitutional grounds, in resorting to force, 
or to methods that involve it, to accelerate or reverse its decis- 
ion. If, in the face of the dissent, or without the express initia- 
tive, of the Congress of the United States, a Territory were to 
proceed to frame — much more to establish — a State govern- 
ment, it would place itself outside the pale of the law, and 
invoke the methods and the forces of revolution. 

For these reasons, I deem the first Convention of Tennessee 
legally without warrant or justification, and therefore revolu- 
tionary. And the argument is not affected by the fact that the 
action of that body was finally acquiesced in by Congress. The 
acquiescence of Congress might legitimate the Constitution, but 
could not remove from the body which framed it the revolution- 
ary taint imparted to it in its inception. The only conclusion 
properly deducible from the acquiescence of Congress would be 
that, having the right to strangle the child, as illegitimate, it had 

1 See opinion of McLean, J., in Scott v. Jones, Lessee, &c., 5 How. (U. S.) R. 
380-382. 



MAINE CONVENTION OF 1819. 167 

seen fit to forego the exercise of that right, preferring, rather, on 
the whole, to receive it into the household, and confer upon it 
the privileges of offspring lawfully begotten. 

§ 183. The next example of the dismemberment of a State 
was that of Maine, formed from a portion of the State of Massa- 
chusetts. 

As early as 1786, before the adoption of the Federal Consti- 
tution, the project of erecting the District of Maine into a sep- 
arate State had been entertained, and a Convention had at one 
time met at Portland to consider the subject.^ It was not, how- 
ever, until after the second war with England that the project 
assumed definite proportions. The stand taken by the Federal 
party during that war had reflected great odium upon Massachu- 
setts, which had been controlled by it, and in which it had been 
more offensively conspicuous than in any State in the Union. 
As in most new and sparsely settled districts, the Democratic or 
war party was in a majority in the District of Maine, and it was 
natural that its leaders should chafe under the sway of the 
Federalists in the older part of the State. Nothing, indeed, stood 
in the way of a separation but the political ambition of the 
parent State, it being evident that to part with that District 
would reduce Massachusetts to a second-rate position in na- 
tional affairs, in which she would be forced to yield the leader- 
ship of the North, hitherto held by her, to the rising State of 
New York. The weight of her unpopularity, however, was so 
great, after the war, that she despaired of longer retaining her 
primacy in the Union, and her federal politicians were not un- 
willing to strengthen themselves for a while at home by letting 
Maine go. The Federalists of Maine protested against this de- 
sertion, but the people of that District, after two or three trials, 
having pronounced decidedly in favor of separation, a Conven- 
tion was called, under the authority of an Act of the legislature 
of Massachusetts, to form a State Constitution. By this body, 
as we shall see, was framed the first Constitution of Maine. 

§ 184. The earliest official action relating to the proposed 
separation was the Act of the Massachusetts legislature referred 
to, entitled, " An Act relating to the Separation of the Disti-ict 
of Maine from Massachusetts proper, and forming the same 
into a separate and independent State," passed June 19, 1819. 
1 Hildreth, Hist. U, S., Vol. III. 1st series, p. 472. 



168 MAINE CONVENTION OP 1819. 

The parts of this Act important for my purpose were as fol- 
lows : — 

" Whereas, it has been represented to this legislature, that a 
majority of the people of the District of Maine are desirous of 
establishing a separate and independent government within the 
said District, therefore be it enacted," &c. 

" That the consent of this commonwealth be, and the same 
is, hereby given, that the District of Maine may be formed and 
erected into a separate and independent State, if the people 
of the said District shall, in the manner, and by the majority 
hereinafter mentioned, express their consent and agreement 
thereto, upon the terms and conditions : and provided the Con- 
gress of the United States shall give its consent thereto, before 
the fourth day of March next, which terms and conditions are as 
follows " : — (the terms and conditions relate to the public 
property and the guaranty of existing rights) " subject, how- 
ever, to be modified or annulled by the agreement of the legis- 
latures of both of said States, but by no other power or body 
whatsoever." 

§ 185. The requisites, as to manner and majority, of the 
assent and agreement to be given by the people of the District 
of Maine, prescribed in the second section, were, "that the 
inhabitants of the several towns, districts, and plantations in 
the District of Maine, qualified to vote for Governor or Sen- 
ators," should " assemble in regular meeting, to be notified by 
warrants of the proper officers, on the fourth Monday of July 
next, and " should " in open meeting, give in their votes on this 
question : ' Is it expedient that the District of Maine shall 
become a separate and independent State, upon the terms and 
conditions provided in an Act entitled,' " &c. The Act then 
proceeded to give minute regulations for conducting the elec- 
tion, the return and canvassing of the votes, and the proclama- 
tion of the result to the people. It finally provided, that, in case 
there should have been cast in favor of such separation a 
majority of fifteen hundred votes, " then and not otherwise the 
people of said District " should " be deemed to have expressed 
their consent and agreement that the said District " should " be- 
come a separate and independent State, upon the terms and 
conditions above stated." In which case it required the Gov- 
ernor, in his proclamation, to "call upon the people of said 



WEST VIEGINIA CONVENTION OF 1861. 169 

District to choose delegates to meet in Convention for the pur- 
pose " of framing a Constitution for the proposed State. 

In pursuance of this Act, a Convention was elected, and met 
at Portland on the 11th of October, 1819, and, after a session 
of eighteen days, adopted and submitted to the people of the 
District a Constitution, which the latter, on the 6th of Decem- 
ber, 1819, in their town-meetings, ratified and confirmed. This 
Constitution having been presented to Congress, with a petition 
for the admission of the State into the Union, an Act was 
passed for that purpose on the 3d of March, 1820, which, after 
reciting the Act of Massachusetts, and that, in pursuance 
thereof, " the people of that part of Massachusetts heretofore 
known as the District of Maine, did, with the consent of the 
legislature of said State of Massachusetts, form themselves 
into an independent State, and did establish a Constitution for 
the government of the same, agreeably to the provisions of said 
Act," enacted, " that from and after the 15th of March, 1820, the 
State of Maine be and be declared to be one of the United 
States of America." 

Respecting the legitimacy of the Convention thus called, no 
extended observations are necessary. That body undoubtedly 
possessed, in full measure, each of the requisites to give it a 
legitimate character as a Constitutional Convention, — viz., the 
consent of the people of the State of Massachusetts, expressed, 
as the Constitution of the United States requires, by the legis- 
lature of the State ; that of the inhabitants of the district, and 
that of Congress. 

§ 186. The only remaining instance of the formation of a 
State by the dismemberment of another State, is that of West 
Virginia. 

The official proceedings culminating in the establishment of 
this new State, were as follows : — 

On the 17th of April, 1861, a body of men, assembled by the 
legislature of Virginia, on the 13th of February preceding, and 
styling themselves " the Convention of Virginia," passed a pre- 
tended ordinance of secession from the United States, and, so 
far as they had power to do so, carried the State, as a political 
organization, out of the Union. The officers of the State, with 
great unanimity, joined the rebel cause, carrying with them the 
public funds, the archives of the State, and such of the national 



170 WEST VIRGINIA CONVENTION OF 1861. 

forts and arsenals within the limits of Virginia, as they had the 
physical ability to seize and maintain. The insurgents not act- 
ually withdrawing from the State, the situation was as follows : 
There was the State of Virginia, considered territorially as a 
portion of the national domain ; there were the rebel forces, gov- 
ernment, and population in hostile possession of that part of the 
State occupied by their camps (for they could be recognized by 
the United States and its adherents as only temporarily en- 
camped upon a portion of the territory of the Union) ; and 
there were the loyal Virginians settled, in an unorganized con- 
dition, upon the residue. In these circumstances, and at this 
stage of events, it is evident that the people of the State of 
Virginia, so far as the Constitution or Government of the 
United States could recognize a people at all, consisted only 
of its loyal inhabitants ; and they were left, as by some great 
calamity, wholly destitute of a government, except, for national 
purposes, that of the Union, — reduced, so far as their internal 
administration was concerned, to a state of nature. In other 
words, so far as related to their local institutions, they were in a 
condition analogous to that in which their fathers were, when, 
upon the suppression of the royal government in 1774, they 
were compelled themselves, in their original capacity, to gather 
up the ravelled threads of government and weave them anew 
into a system for their defence. In 1774, there had existed a 
colonial establishment, but organized under the crown, and 
therefore hostile to their liberties, for which reason it had been 
repudiated by the people of Virginia ; so, in 1861, there was a 
State organization, which, having ceased to be loyal to the 
Union, for which the Virginians, not seduced by the treason of 
their seceding rulers, still retained their affection, and to which 
they deemed allegiance still due, they ceased to follow in its 
eccentric course, or to obey. They, therefore, under the pro- 
tection and with the countenance of the United States Govern- 
ment, commenced, as with a tabula rasa, the reconstruction of 
society from its foundations. This was possible only by em- 
ploying the methods of revolution. The initiative must be 
taken by some body of persons having rights of jurisdiction 
within the limits of Virginia. No such body existed. It could 
not regularly be done by the citizens of Virginia still remaining 
loyal, because they were mere private individuals. It could not 



WEST VIRGINIA CONVENTION OF 1861. 171 

be regularly done by the people or Government of the Union, 
for, by the Federal Constitution, the right of founding and 
amending Constitutions for the State of Virginia had been 
delegated to the people of that State, acting by and through 
their State organization, subject merely to the federal guaranty 
that such Constitutions should be republican — which State 
organization had ceased to exist. The work of reconstruction, 
therefore, must be inaugurated irregularly, since a government 
must be forthwith established. Of the only two modes of 
effecting this work, at that time practicable, namely, that by a 
spontaneous movement of the loyal citizens of Virginia, and 
that by an enabling Act to be passed by the Congress of the 
United States, both irregular, the former was adopted, as I have 
said, with the countenance and under the protection of the 
United States. The steps taken to this end were as follows : — 
§ 187. On the 11th of June, 1861, a Convention of loyal 
Virginians met at Wheeling upon the call of influential persons 
in different parts of the State, with a view to reconstruct the 
State government. Taking their stand upon the Virginia Bill 
of Rights, framed in 1776, and reaffirmed in 1830 and 1851, 
they assumed to themselves the powers of government, forfeited 
by the treason of their rulers, and pronounced the Act of the 
General Assembly calling the Convention of February, 1861, 
without the previously expressed consent of the people, to be 
an act of usurpation. After denouncing the acts of that Con- 
vention as abuses of the powers intrusted to it, stigmatizing 
especially its attempt " to bring the allegiance of the people of 
the United States into direct conflict with their subordinate 
allegiance to the State ; thereby making obedience to their pre- 
tended ordinances treason against the former," they solemnly 
declared, " in the name and on behalf of the good people of 
Virginia, that the preservation of their dearest rights and lib- 
erties, and their security in person and property, imperatively " 
demanded " the reorganization of the government of the Com- 
monwealth, and that all acts of said Convention .... tending 
to separate this Commonwealth from the United States, or to 
levy and carry on war against them," were " without authority 
and void ; and that the offices of all v^'ho " adhered to " the said 
Convention .... whether legislative, executive, or judicial," 
were " vacated." The Convention then, by an Ordinance, passed 



172 WEST VIRGINIA CONVENTION OF 1861. 

on the 19th of June, 1861, provided for the appointment of a 
governor, and other State officers, to continue in office six 
months, or until their successors were elected and qualified, and 
for a General Assembly, to consist of the members elected in 
May preceding, and such as might be elected under the Ordin- 
ances of the Convention, and to hold their offices until the end 
of the terms for which they should be elected. The General 
Assembly was required to meet on the 1st of July, 1861, and 
to proceed to organize themselves, as prescribed by existing 
laws, in the respective branches. 

§ 188. Thus far the proceedings of the Convention related to 
the reconstruction of the State government. Now commenced 
those having for their object the dismemberment of the State. 
On the 20th of August, 1861, the Virginia Convention passed 
an Ordinance, entitled, " An Ordinance to provide for the for- 
mation of a new State out of a portion of the territory of this 
State." The material portions are as follows : — 

" Whereas, it is represented to be the desire of the people 
inhabiting the counties hereinafter mentioned, to be separated 
from this commonwealth, and to be erected into a separate 
State, and admitted into the Union of States; .... The 
people of Virginia, by their delegates assembled in Convention 
at Wheeling, do ordain that a new State, to be called the State 
of Kanawha, be formed and erected out of the territory in- 
cluded within the following limits " (describing the territory in 
the main afterwards embraced in the State of West Virginia) ; 
that " all persons qualified to vote within the boundaries afore- 
said, and who shall present themselves at the several places of 
voting within their respective counties, on the fourth Thursday 
in October next, shall be allowed to vote on the question of the 
formation of a new State ; " and that the commissioners con- 
ducting the election at the several places of voting shall " cause 
polls to be taken for the election of delegates to a Convention 
to form a Constitution for the government of the proposed 
State." The Ordinance further provided (sec. 6) that it should 
be the duty of the Governor, " on or before the 15th day of 
November next, to ascertain and by proclamation make known 
the result of the said vote ; and, if a majority of the votes 
given within the boundaries " prescribed, " shall be in favor of 
the formation of a new State, he shall so state in his said proc- 



WEST VIRGINIA CONVENTION OF 1881. 173 

lamation, and shall call upon the said delegates to meet in the 
city of Wheeling on the 26th day of November next, and 
organize themselves into a Convention ; and the said Conven- 
tion shall submit, for ratification or rejection, the Constitution 
that may be agreed upon by it, to the qualified voters within the 
proposed State, to be voted upon by the said voters, on the 
fourth Thursday in December next." By sections 8 and 10 it 
was required of the Governor to lay before the General Assem- 
bly, at its next meeting, " for their consent, according to the 
Constitution of the United States, the result of said vote," if a 
majority should appear to have voted in favor of a new State, 
and of the proposed Constitution ; and that, when the General 
Assembly should have given its consent to the formation of 
such new State, it should forward to the Congress of the 
United States such consent, together with an official copy of 
such Constitution, with the urgent request that the new State 
might be admitted into the Union. 

§ 189. In pursuance of this ordinance, a vote of the people 
within the temtory mentioned was taken on the question of 
forming a new State and for delegates to a Constitutional Con- 
vention, should the vote favor the formation of such State. The 
election was held on the fourth Thursday in October, 1861, as 
prescribed in the ordinance, and resulted largely in favor of 
forming a new State. The delegates elected on the same day, 
accordingly, on the proclamation of the Governor, convened at 
Wheeling on the 26th of November, 1861, the day fixed by the 
ordinance, and during their session firamed a Constitution, which 
was adopted by the people at a general election held on the 3d 
day of May, 1862.^ Three days thereafter, on the 6th of May, 
1862, an extra session of the legislature of the State of Vir- 
ginia, as reconstituted by the Convention, was held at Wheeling. 
Its first Act, passed on the 13th of May, was entitled " an Act 
giving the consent of the legislature of Virginia to the forma- 

1 Such is the date contained in the preamble to the Act of Congress admit- 
ting the State conditionally into the Union. The day required by the ordi- 
nance of the Convention for the vote on the Constitution was the fourth Thurs- 
day in December, 1861. The address, to their constituents, of the delegates 
composing the Convention, called in 1863 to consider and pass upon the amend- 
ment to the Constitution of the new State, required by Congress to be made 
before the State should be admitted into the Union, on the other hand, speaks 
of the ratification of the Constitution as having been made in April, 1862. I 
am unable to account for these discrepancies. 



174 WEST VIRGINIA CONVENTION OP 1861. 

tion of a new State within the jurisdiction of this State." It 
purported to give the consent of the State to the erection of 
certain counties, named in the Ordinance above referred to, into 
a new State, to be called West Virginia instead of Kanawha, 
and that to them might be added four other counties specified 
in the Act, whenever the voters thereof should ratify and consent 
to the Constitution, at an election held for that purpose. It also 
required the Act, together with the Constitution, to be trans- 
mitted to the Senators and Representatives of Virginia in Con- 
gress, and requested those officers to use their endeavors to 
obtain the consent of Congress to the admission of the State 
of West Virginia into the Union. 

Here, then, after a sort, were two of the three requisites to 
the legitimacy of the new State ; the consent of the people to 
be embraced within its jurisdiction and that of the parent State, 
given first by its Convention and then by its so-called legisla- 
ture, in apparent conformity to the letter of the Federal Con- 
stitution. 

§ 190. Copies of the Act of the Virginia legislature and of 
the proposed Constitution of the new State having been trans- 
mitted to the Virginia delegation in Congress, a bill was intro- 
duced into that body giving its assent to the separation. Objec- 
tions were entertained, however, to one provision of the Consti- 
tution, — that relating to slavery. The Convention which had 
framed that instrument had been about equally divided as to 
the propriety of inserting in the Constitution a clause providing 
for gradual emancipation. Some desired to avoid the conten- 
tion the agitation of the subject would inevitably engender, 
while others thought that without the insertion of such a clause 
the consent of Congress would not be given to the separation 
from the parent State. Under these circumstances a compromise 
clause had been agreed on, which had received the unanimous 
vote of the Convention and been inserted in the Constitution. 
It provided simply that no slave should be brought, nor free per- 
son of color be permitted to come, into the State for permanent 
residence. This Constitution, as we have seen, was ratified by 
the people. This is the clause to which, when the Constitution 
was considered in Congress, exception was taken, and the result 
of the action of that body was, that the proposed State was 
constrained to substitute for the clause in question another, pro- 



WEST VIRGINIA CONVENTION OF 1861. 175 

viding for gradual emancipation. On the 31st of December, 
1862, an Act was passed by Congress entitled, "An Act for the 
Admission of West Virginia into the Union, and for other pur- 
poses," which, after reciting the proceedings I have before consid- 
ered, and that both the Convention and the legislature of Virginia 
had requested that the new State should be admitted into the 
Union, declared the consent of Congress, that the forty-eight 
comities named in the Act should be formed into a separate and 
independent State, and admitted as such into the Union, pro- 
vided, that said Act should not take effect until after a proclama- 
tion of the President of the United States should be issued, 
stating the fulfilment of the following condition, viz., — the peo- 
ple of the proposed State, by their Convention, were to insert in 
the Constitution, in lieu of the compromise clause, the following 
section : — 

" The children of slaves, born within the limits of the State 
after the fourth of July, eighteen hundred and sixty-three, shall 
be free ; and all the slaves within the said State, who shall, at 
the time aforesaid, be under the age of ten years, shall be free 
when they arrive at the age of twenty-one years ; and all slaves 
over ten and under twenty-one years shall be free when they arrive 
at the age of twenty-five years ; and no slave shall be permitted 
to come into the State for permanent residence therein." 

This provision was, by the Convention, on the 18th of Feb- 
ruary, 1863, substituted for the one objected to by Congress, and 
the Constitution, as thus amended, was thereupon submitted a 
second time to the people for ratification or rejection. The elec- 
tion for that purpose was held on the 26th of March, 1863, and 
the result was that it was ratified by a very large majority. 

As required by the Act of Congress, this result having been 
certified, under the hand of the President of the Convention, to 
the President of the United States, the latter issued his procla- 
mation announcing the fact, and West Virginia, sixty days 
thereafter, is supposed, according to the terms of the Act, to 
have become a State in the Union. 

§ 191. Whether the erection of West Virginia into a sepa- 
rate State was a constitutional act or not, depends on the ques- 
tion whether the so-called legislature of Virginia, which met at 
Wheeling on the 6th of May, 1862, and passed the Act purport- 
ing to give the consent of Virginia to its own dismemberment, 



176 WEST VIRGINIA CONVENTION OF 1861. 

was, in law, the legislature of the State of Virginia. If it was 
such, obviously the three conditions required by the Federal 
Constitution, and by the principles of our political system, for 
the valid dismemberment of a State, namely, the consent of the 
legislature of the State concerned, of the Congress, and of the 
inhabitants of the proposed new State, were all fulfilled. 

That that legislature was the lawful legislature of Virginia is, 
in my judgment, beyond question. 

1. It should be observed, that the legal character of that body 
is not to be determined by that of the Convention which called 
it together or constituted it. In the initiation and in the pro- 
ceedings of that Convention there was doubtless, if not a revo- 
lutionary taint, at least an irregularity. But it is clear that an 
institution or a form of government, ordained by a Revolutionary 
Convention, may, by a formal ratification, or even by the acqui- 
escence of the proper authority, become legal and valid.^ Were 
not the General Assemblies established in the original thirteen 
States, by their first Constitutions, regarded from the point of 
view of " United America," legal Assemblies ? 

§ 192. 2. Properly considered, then, even if judged by the 
principles of public law alone, the question of the legality of 
the Virginia legislature is one of general and continuous recog- 
nition as such. Under the Federal Constitution, while the ques- 
tion is of the same nature, the scope of the recognition required 
to stamp that legislature as legal is narrowed to that of the 
United States. It is not necessary, in other words, that, to be 
legal and valid, that legislature should present itself backed by 
a major part of the citizens of the State. It is enough if it 
show itself to be a branch of a de facto government, in force in 
Virginia, and have upon its front the stamp of Federal recognition. 

That this is a correct view of the case, follows from the de- 
cision of the Supreme Court of the United States in the case 
of Luther v. Borden, involving the legality of the so-called 
" People's Constitution " and government of Rhode Island.^ 

The fourth section of the fourth Article of the Constitution 
of the United States provides, that " the United States shall 

1 See § 187, ante. See also Am. Law Reg., Vol. I. new series, pp. 651-660, 
case of Williamson v. Jones. 

2 7 How. (U. S.) R. 1. For a full account of the proceedings from which 
this case arose, see post, §§ 226-228. 



WEST TIRGINIA CONVENTION OF 1861. 177 

guarantee to every State in this Union a republican form of 
government, and shall protect each of them against invasion ; 
and, on application of the legislature, or of the executive (when 
the legislature cannot be convened), against domestic violence." 

The " people's party," constituting, as it was claimed, the 
majority of all the adult male citizens of Rhode Island, having, 
in defiance of the Charter government of that State, framed and 
adopted a Constitution and form of government, and attempted 
forcibly to put the same in operation, the question of the legality 
of that Constitution and government, as against that existing 
under the Charter of Charles II., came finally to be passed upon 
by the Supreme Court of the United States, in the case referred 
to. It appearing to the court, as a part of the history of the case, 
that the Governor of Rhode Island, under the Charter govern- 
ment, had applied to the President of the United States for the 
protection guaranteed in the section specified, and that the Presi- 
dent had promised the same, and made arrangements to call out 
the militia to sustain the Charter government, should it become 
necessary — thus, by an authentic act, recognizing such govern- 
ment as lawful and valid — it was held. Judge Taney delivering 
the opinion of the court, that this act of federal recognition, done 
in pursuance of the Constitution and laws of the United States, 
was decisive as to the legality of the Charter government, and 
as to the illegality of that of the " people's party." 

The court say : — 
. " Under this article of the Constitution " (Art. IV. Sec. 4), 
" it rests with Congress to decide what government is the estab- 
lished one in a State ; for, as the United States guarantees to 
each State a republican government. Congress must decide 
what government is established in the State before it can deter- 
mine whether it is republican or not ; and when the senators 
and representatives of a State are admitted into the councils of 
the Union, the authority of the government under which they 
are appointed, as well as its republican character, is recognized 
by the proper constitutional authority, and its decision is bind- 
ing on every other department of the government, and could not 
be questioned in a judicial tribunal. 

" So, too, as relates to the clause of the Constitution, providing 
for cases of domestic violence, it rested with Congress to deter- 
mine upon the means proper to be adopted to fulfil this guar- 

12 



178 WEST VIRGINIA CONVENTION OF 1861. 

antee. They might, if they had deemed it most advisable to 
do so, have placed it in the power of a court to decide when 
the contingency had happened which required the Federal Gov- 
ernment to interfere. But Congress thought otherwise; and by 
the Act of February 28, 1795, provided that, in case of an insur- 
rection in any State against the government thereof, it shall be 
lawful for the President of the United States, on application of 
the legislature of such State, or of the executive (when the leg- 
islature cannot be convened), to call forth such numbers of the 
militia of any other State or States, as may be applied for, as he 
may judge sufficient to suppress such insurrection. This power, 
conferred upon the President by the Constitution and laws of 
the United States, belongs to him exclusively. The President 
has acted in the case of Rhode Island ; not, it is true, by actu- 
ally calling out the militia, on the application of the Governor 
of Rhode Island, under the Charter government, but by recog- 
nizing him as the executive of the State, by taking measures 
to call out the militia to support his authority, if it should be 
found necessary for the general government to interfere. This 
interference by the President, by announcing his determination, 
was as efficient as if the militia had been assembled under his 
orders ; it ought to be equally authoritative ; and no court of 
the United States would, knowing this decision, be justified in 
recognizing the opposing party as the lawful government." ^ 

§ 193. Under whichever clause of the constitutional provision 
the case of Virginia should be thought to come,^ the conditions 
necessary to bring it within the principles of this decision, were 
fulfilled. 

1. By the first clause, the United States are required to guar- 
antee to every State in the Union a Republican form of govern- 
ment. Such a guarantee involves an undertaking, first, that 
some government, acting in harmony with that of the Union, 

1 Luther v. Borden, 7 How. (U. S.) R. 44. 

2 Virginia, through her Governor, elected in pursuance of an Ordinance of 
the Wheeling Convention, of June 11, 1861, formally demanded of the Presi- 
dent the fulfilment of the Constitutional guarantee in her favor, and the Presi- 
dent admitted the obligation, and promised his best efforts to fulfil it. See the 
Ann. Cyclop, for 1861, Art. ^'■Virginia, Western," citing a letter of Attorney-Gen- 
eral Bates. The call upon the President, instead of upon Congress, would indi- 
cate that Virginia placed her case under the second clause of the Constitutional 
guarantee. See § 192, ante, opinion of Judge Taney. 



WEST VIRGINIA CONVENTION OP 1861. 179 

shall be established in each State thereof ; and, secondly, that 
the government so established, shall conform to our general 
republican scheme. 

If, then, previously to the time when Congress passed the Act 
admitting West Virginia into the Union, Virginia be regarded 
either as having no legitimate government at all, or as having 
one or more whose conf6rmity to republican standards was de- 
nied, Congress, by the very act of admitting into the Union a 
new State, whose formation was necessarily based on the con- 
sent of some Virginia legislature, recognized the consenting 
legislature as part of a legal and valid government. Such a 
recognition would be implied in that act. But it is not neces- 
sary to rest the case upon an implied recognition. The Act 
admitting West Virginia into the Union expressly refers to, and 
recognizes as a lawful body, the legislature of Virginia in ques- 
tion. In the preamble, there appears the following recital : — 
" And whereas, the legislature of Virginia, by an Act passed on 
the 13th day of May, 1862, did give its consent to the formation 
of a new State within the jurisdiction of the said State of Vir- 
ginia," &c. 

2. If, on the other hand, the case of Virginia be brought within 
the latter clause of the constitutional provision, requiring the 
United States to guarantee the States against domestic violence, 
or against invasion, the repeated acts of the United States in 
all its departments, recognizing the loyal government of Virginia 
of which the legislature in question was a part, as an existing 
State government, stamped that government and legislature as 
legal and valid. For over four years after the establishment of 
the loyal government of Virginia, the President of the United 
States was engaged, in concert with that government, in ex- 
pelling from her borders the rebel invaders — during two years 
of that time, the senators and representatives of the new State 
of West Virginia, founded upon its consent, as upon that of a 
valid government, actually sitting in Congress. 

For these reasons it is impossible to deny that the legislature 
of Virginia in question was a lawful legislature. What has 
been uniformly recognized as legal by the legislative and execu- 
tive branches of the United States government, by the Constitu- 
tion and laws made the exclusive judges of that fact, and to 
whose decision on the question, the Supreme Court of the United 



180 CONVENTIONS TO FRAME CONSTITUTIONS 

States admits itself bound to conform, must be set down as 
legal. 

§ 194. 2. The second variety of Conventions assembled since 
the establishment of the Federal Constitution, consists of such 
Conventions as have been called to frame Constitutions for new 
States, to be formed out of territory of the United States, organ- 
ized under its authority, or acquired in an organized condition 
from foreign states. 

For convenience, this variety may be subdivided into two 
others, comprising — 

(a). Such Conventions as have been assembled regularly, in 
pursuance of enabling Acts of Congress; and 

(b). Such as have been convened by the inhabitants, or the 
temporary governments of organized Territories, irregularly, with- 
out enabling Acts of Congress. 

These will be considered in their order. 

§ 195. (a). Since the establishment of the Federal Constitu- 
tion, in March, 1789, eighteen new States have been formed out 
of Federal territory, and admitted into the Union. Conventions, 
concerned in framing the first Constitutions of twelve of these 
States, have been regularly assembled under the authority of 
prior enabling Acts. These are those of Ohio, Louisiana, Indi- 
ana, Mississippi, Illinois, Alabama, Missouri, Texas, the first of 
the two Conventions of Wisconsin, that of Minnesota, the third 
of the three Conventions of Kansas, and the second of the two 
Conventions of Nevada. 

Respecting these Conventions, a detailed statement of facts is 
deemed unnecessary. I shall, therefore, confine myself to a brief 
reference to the principles by which their regularity is to be 
determined, and to a survey, equally brief, of the most general 
facts that preceded their call and assembling. 

According to the principles developed in the second chapter 
of this treatise, the sovereign authority over the Territories, 
whether organized or unorganized, resides in the people of the 
United States ; but while that is true, the exercise of this sov- 
ereign authority has, by the Constitution of the Union, been 
committed to the Congress of the United States. To these 
principles, universally recognized, add this other, that it is only 
the sovereign political body, acting through its representatives, 
by whom the Constitution of government existing in any State 



FOR TERRITORIES OF THE UNITED STATES. 181 

or Territory, can be changed or abolished, or the rights of terri- 
tory or of jurisdiction belonging to such sovereign body, modi- 
fied or abridged, and we have the key to the w^hole subject of 
Conventions in the Territories of the United States. To be 
legitimate, a Convention, called to erect a State out of Federal 
territory, or to frame for it a Constitution, must have been 
assembled with the knowledge and consent of Congress ; to be 
regular, it must have been called by a formal Act of that body ; 
and to give to the fruit of its labors any force or vigor whatever 
as law, it must submit it to the same assembly, as the principal 
depositary of the sovereign rights of the Union, for ratification 
or rejection. 

Tested by these principles, the Conventions that framed the 
Constitutions under which the States above named were ad- 
mitted into the Union, are believed to have been strictly regular 
and legitimate. 

The course of proceeding uniformly pursued in such cases 
has been for the inhabitants of the Territory desiring to be 
transformed into a State, or for some branch of the Territorial 
government, to move the matter in Congress by petitions or 
memorials, and then for Congress, if the erection of a State be 
deemed proper and expedient, to pass an Act expressly author- 
izing the assembling of a Convention of delegates to pass upon 
the question of State organization, and, if that should be de- 
sired, to frame a Constitution. 

In all the Acts of this kind, commonly known as " enabling 
Acts," conditions are imposed, upon compliance with which either 
the proposed State is in advance declared to be admitted into the 
Union, or the President is authorized to issue his proclamation 
announcing such compliance, and declaring the State thereupon 
to be admitted into the Union. 

In nearly all the States embraced in this class, the final act, 
following after the formation of the Constitution according to 
the enabling Act, and the submission of the same to the judg- 
ment of Congress, has been the passage by the latter of a for- 
mal Act or resolution, reciting the proceedings of the Conven- 
tion, and declaring, first, that the Constitution framed for the 
proposed State is republican in form ; and, secondly, that the 
State is thereby admitted into the Union on a footing of 
equality with the original States. In Missouri and Nevada, the 



182 CONVENTIONS ASSEMBLED WITHOUT ENABLING ACTS. 

final act was a proclamation by the President of the United 
States, made in pursuance of a previous Act or resolution of 
Congress.^ 

§ 196. (b). Belonging to the remaining variety of Conven- 
tions concerned in framing Constitutions for new States to be 
formed out of Federal territory, comprising such as have been 
called irregularly, without enabling Acts of Congress, there 
have been thirteen, assembled in nine different States, namely, 
— the three Conventions of Michigan, held in 1835 and 1836, 
those of Arkansas and Florida, held respectively in 1836 and 
1839, the two of Iowa of 1844 and 1846, that of Wisconsin 
of 1847,2 ^ijat of California, the first two of Kansas of 1855 and 
1857, that of Oregon, and the first of the two Conventions 
of Nevada. 

These various Conventions will be considered with some par- 
ticularity, beginning with those of Michigan, the first in point 
of time. 

Before entering, however, upon this examination, it will be 
useful to bring into view certain Acts of Congress and certain 
treaties, whose provisions have been supposed to establish, if not 
the regularity of those Conventions, at least the essential right- 
fulness of their proceedings, in attempting, without the formal 
consent of Congress, to erect their several Territories into States. 

We have already seen, in considering the first Convention 
of Tennessee, that that Territory claimed the right of being ad- 
mitted into the Union on the ground that she in fact possessed 

1 For the several enabling Acts in these cases, see 2 U. S. Stat, at Large, 
173-175; id. 641-643; 3 do. 289-291; id. 428-430; id. 489-492; id. 546-548; 
5 do. 797; 9 do. 56-58; 11 do. 166; id. 269-272; and Act of March 21, 1864, 
not yet published with Statutes at Large. 

2 The first Convention of Wisconsin, held in 1846, met in pursuance of an 
enabling Act of Congress ; the Convention framed a Constitution, which, being 
submitted to the people in April, 1847, was rejected. In the mean time, prob- 
ably expecting that the people would adopt the Constitution, Congress, on the 
3d of March, 1847, passed an Act admitting the State into the Union, upon con- 
dition that the Constitution should be ratified by the people. The rejection by 
the people left the Territory without a Constitution, and outside the Union. 
Whether it left it with an enabhng Act for a second Convention is, in my judg- 
ment, doubtful. I have accordingly classed the second Convention, called by 
the Legislative Assembly of Wisconsin in October, 1847, to meet in the follow- 
'm<y December, by which the present Constitution of the State was framed, with 
those called without enabling Acts. 



CONVENTIONS ASSEMBLED "WITHOUT ENABLING ACTS. 183 

a population of sixty thousand free inhabitants, basing her 
claim on a condition of the deed of cession from North Caro- 
lina to the United States, specially accepted by the latter, to the 
effect that the provisions of the Ordinance of 1787, entitling the 
Territories northwest of the Ohio to admission into the Union, 
so soon as they should have sixty thousand free inhabitants, 
should apply to the territory thus ceded. The provisions of the 
Ordinance referred to were contained in Article V. of that part of 
it entitled the " Compact," and were substantially as follows : — 

After dividing the territory northwest of the Ohio, now con- 
stituting the five States of Ohio, Indiana, Illinois, Michigan, 
and Wisconsin, into three prospective States, by lines corre- 
sponding in the main with the east and west boundaries of 
Ohio, Indiana, and Illinois, but extending to the Canadian 
frontier, with a proviso that they might, if Congress should 
deem it expedient, be made into five States, the Ordinance pro- 
ceeds : — "And whenever any of the said States shall have 
sixty thousand free inhabitants therein, such State shall be 
admitted, by its delegates, into the Congress of the United 
States, on an equal footing wil'h the original States in all re- 
spects whatever, and shall be at liberty to form a permanent 
Constitution and State government : Provided, The Constitu- 
tion and government so to be formed shall be republican, and in 
conformity to the principles contained in these articles, and so 
far as it can be consistent with the general interest of the Con- 
federacy, such admission shall be allowed at an earlier period, 
and when there may be a less number of free inhabitants in the 
State than sixty thousand." 

The provisions of this Ordinance, framed under the Confeder- 
ation, were continued in force after the adoption of the present 
Constitution of the United States, by an Act of the first Con- 
gress, that met under the latter. 

Whatever rights, therefore, were secured by this Ordinance, 
belonged equally to the three States, or the five States, as the 
case might be, into which the territory covered by it should be 
divided. 

§ 197. The States of Arkansas, Iowa, and Kansas, were 
framed out of territory acquired by the United States from 
France by the treaty of April 30, 1803, the third article of 
which contained the following provision : — 



184 CONVENTIONS ASSEMBLED WITHOUT ENABLING ACTS. 

" The inhabitants of the ceded territory shall be incorporated 
in the Union of the United States, and admitted as soon as 
possible, according to the principles of the Federal Constitution, 
to the enjoyment of all the rights, advantages, and immunities 
of citizens of the United States." ^ 

In like manner, by the treaty of February 22, 1819, between 
the United States and his Catholic Majesty, the King of Spain, 
by which the territory known as East and West Florida was 
ceded by the latter to the former, it was provided as follows : — 

" Article VI. The inhabitants of the territory which his Cath- 
olic Majesty cedes to the United States by this treaty, shall be 
incorporated in the Union of the United States, as soon as may 
be consistent with the principles of the Federal Constitution, 
and admitted to the enjoyment of all the privileges, rights, and 
immunities of citizens of the United States. "^ 

Finally, by the treaty between the United States and Mexico 
of February 2, 1848, by which the former acquired California 
and New Mexico, it was stipulated on behalf of the inhabitants 
of the ceded territories, Article IX., as follows : - — 

" Mexicans who, in the territories aforesaid, shall not preserve 
the character of citizens of the Mexican Republic, conformably 
with what is stipulated in the preceding article, shall be incor- 
porated into the Union of the United States, and be admitted 
at the proper time (to be judged of by the Congress of the 
United States) to the enjoyment of all the rights of citizens of 
the United States, according to the principles of the Constitu- 
tion," &c. ^ 

Covered by the provisions of this treaty were the States of 
California and Nevada, not to mention the Territories carved out 
of the ceded Mexican territory, but not yet admitted into the 
Union, — Utah, Colorado, New Mexico, and Arizona. 

Thus, of the Territories comprised in the list now under con- 
sideration, which have proceeded irregularly to form themselves 
into States, all, except Oregon, were acquired by the United 
States under deeds or treaties of cession containing stipulations 
binding the latter to admit them sooner or later into the Union, 
either when they should have come to have a population of sixty 

1 U. S. Stat, at Large, Vol. VIII. pp. 200-202. 

2 Id. pp. 252-258. 

3 Do. Vol. IX. pp. 922-930. 



MICHIGAN CONVENTION OF 1835. 185 

thousand free inhabitants, or as soon as it should be consistent 
with the principles of the Federal Constitution. The handle 
made of these stipulations will be seen when we come to con- 
sider the Conventions of the States named, separately, to which 
I now pass, beginning with those of the State of Michigan. 

§ 198. The people of the Territory of Michigan having, in 
1832, by a vote of a decided majority, determined to apply for ad- 
mission into the Union, the Legislative Council of the Territory, 
at their next succeeding session, memorialized Congress on the 
subject. A bill was accordingly reported, in February, 1833, 
for an enabling Act for that purpose ; but, owing to the opposi- 
tion of Ohio, growing out of disputes about boundaries, the bill 
was not passed. On the 6th of September, 1834, the Legislative 
Council of Michigan passed an Act, on the suggestion of the 
acting Governor of the Territory, Stevens L. Mason, providing 
for taking "a census of the inhabitants of the Peninsula, as well 
as of those west of Lake Michigan," with a view, if the popu- 
lation should be found sufficient, to take steps for the erection 
of a State out of said 'Territory. The result of the census was, 
that there were found to be within the limits of the Territory, 
eighty-seven thousand two hundred and seventy-three free in- 
habitants. Thereupon, the same body, on the 26th of January, 
1835, passed an Act, entitled, " An Act to enable the People of 
Michigan to form a Constitution and State Government," in 
pursuance of which delegates were elected, and met in Conven- 
tion at Detroit on the 11th of May, 1835. By this Convention 
a Constitution was framed and submitted to the people for 
adoption or rejection, at an election held on the 5th of October 
following, when it was ratified by a decisive vote of over five to 
one, and thereupon a State government in all its departments 
was organized. 

By section 10 of the Schedule appended to the Constitution, 
it was made the duty of the President of the Convention, in 
case of its ratification, to transmit a copy of it, together with 
copies of the Act of the Legislative Council calling the Conven- 
tion, and of so much of the census of the Territory as should 
exhibit the number of free inhabitants in the portion thereof 
comprised within the limits of the proposed State, to the Presi- 
dent of the United States, with a request for admission into the 
Union. The limits of the State, as prescribed by the Legis- 



186 MICHIGAN CONVENTION OF 1835. 

lative Council in its Act calling the Convention, as well as by 
the Convention, embraced a strip of territory now belonging to 
the State of Ohio, being so much of that State as lies between 
its north line, as at present established, and an east and west 
line, running through the southerly point of Lake Michigan. It 
should be also noted that the proposed State did not embrace 
the whole of the Territory of Michigan, as established by the 
Acts of Congress of January 11, 1805, and April 18, 1818, but 
only that part of the Territory lying between the Lakes Michi- 
gan and Huron, extending south as far as to an east and west 
line running through the southerly point of Lake Michigan — 
thus cutting off that large tract forming a part of the Michigan 
Territory, which afterwards constituted the Wisconsin Territory. 
§ 199. On the 9th of December, 1835, in the first week of the 
session, President Jackson called the attention of Congress to 
the application of Michigan for admission, in a special message, 
in which, without expressing any opinion on its merits, he based 
the claim of that State upon the provision of the Ordinance of 
1787, above referred to. The matter cotaing up for considera- 
tion, objection was made to the admission with the boundaries 
specified in the Constitution, and exception was taken to the 
irregular proceedings of the Legislative Council in calling the 
Convention without the authorization of Congress. ^ A bill, 

' The subject was specially called to the attention of the Senate by a me- 
jnorial from " the Senate and House of Representatives of the State of Michi- 
gan," relating to the right to be admitted into the Union. On motion of Mr. 
Hendricks, of Indiana, this memorial was refused, accompanied by a declara- 
tion " that the Senate regard the same in no other light than as the voluntary 
act of private individuals." Mr. Kuggles, of Maine, moved to strike out this 
declaration ; and, on the yeas and nays, his motion was rejected by a vote of 
30 to 12. Thus the Senate solemnly determined that the so-called " Legislature 
of Michigan " was a mere assembly of private individuals. Again, the bill for 
the admission of Michigan into the Union, when first reported by the committee, 
provided, that the assent to the boundaries of the State, required by the third 
section, should be given by their senators and representatives in Congress, and 
by the legislature of the State. Senator Wright, of New York, moved to strike 
out this provision, and to insert in its stead, that the assent required should be 
given by "a Convention of delegates elected by the people of the said State for 
the sole purpose of giving the assent herein requii'ed." This motion was car- 
ried by an unanimous vote of the Senate, — again indicating the opinion of 
that body, that the so-called State organization was a nullity, and its supposed 
officers and representatives entitled to no consideration. See Speech of James 
Buchanan, in Benton's Abr. Deb. in Cong., Vol. XHI. p. 80. 



MICHIGAN CONVENTIONS OF 1836. 187 

however, was finally carried, admitting the State into the Union, 
but requiring a modification of its boundaries. By this Act, en- 
titled, " An Act to establish the Northern Boundary Line of the 
State of Ohio, and to provide for the admission of the State of 
Michigan into the Union, upon the conditions therein expressed," 
approved June 15, 1836, it was provided, as follows : — 

" That the Constitution and State government which the 
people of Michigan have formed for themselves be, and the 
same is hereby, accepted, ratified, and confirmed, and that the 

State of Michigan is hereby admitted into the Union 

Provided always, and this admission is upon the express condi- 
tion, that the said State shall consist of, and have jurisdiction 
over, all the territory included within the following boundaries, 
and over none other, to wit "(setting forth the boundaries). The 
Act then provided as follows : — 

" Sec. 3. And be it further enacted, that, as a compliance 
with the fundamental condition of admission contained in the 
last preceding section of this Act, the boundaries of the said 
State of Michigan, as in that section described, declared and 
established, shall receive the assent of a Convention of delegates 
elected by the people of the said State, for the sole purpose of 
giving the assent herein required." ^ 

It then made it the duty of the President of the United 
States, as soon as such assent should have been given, to an- 
nounce the same by proclamation, whereupon the admission of 
the State into the Union was to be complete. 

By this Act, it will be observed, no mode was specified in 
which the Convention to pass upon the condition should be 
called. One, however, was elected, in pursuance of an Act 
passed July 25, 1836, by the State legislature, as organized 
under the Constitution. This Convention met on the 26th of 
September following, and rejected the condition imposed by 
Congress, on the ground that that body had no right to annex 
such a condition to the admission of the State into the Union, 
according to the terms of the Ordinance of 1787, and communi- 
cated its dissent to the President of the United States. 

Public opinion, however, being much divided upon the ques- 
tion, subsequently a new Convention, composed of delegates 
elected by a spontaneous movement of those who favored ad- 
i U. S. Stat, at Large, Vol. V. pp. 49, 5(5. 



188 ACTION OF CONGEESS ON THE ADMISSION OF MICHIGAN. 

mission on the terms proposed by Congress, was called on the 
14th of December, 1836, by which the condition was declared 
accepted. By information gathered subsequently to its adjourn- 
ment, it was made to appear probable that from 5000 to 6000 
votes for members of this latter Convention had been cast at the 
first election for those who had opposed the acceptance of the 
condition in the former Convention, and from 8000 to 9000 in 
favor of those who urged the acceptance of the same. Such 
was the evidence that Michigan had complied with the funda- 
mental condition imposed by Congress. 

§ 200. The action of this Convention having been immedi- 
ately communicated to the President of the United States, that 
officer, on the 26th of the same month — December, 1836 — sent 
a message, with accompanying documents, to the Senate, em- 
bodying the request of Michigan for admission into the Union, 
and committing the whole matter to the judgment of Congress; 
the President at the same time stating, that had the information 
communicated arrived during the recess of Congress, he would 
have issued his proclamation declaring the State admitted into 
the Union, since, in his opinion, she had complied with the 
requisite terms of admission. This message being referred to 
the Committee on the Judiciary, a bill was reported to the Sen- 
ate for the admission of the State into the Union, of which the 
preamble was as follows : — 

" W/iereas, in pursuance of the Act of Congress of June the 
fifteenth, eighteen hundred and thirty-six, entitled ' An Act to 
establish the Northern Boundary Line of the State of Ohio, and 
to provide for the Admission of the State of Michigan into the 
Union,' a Convention of delegates, elected by the people of the 
said State of Michigan for the sole purpose of giving their 
assent to the boundaries of the said State of Michigan, as de- 
scribed, declared, and established in and by the said Act, did, on 
the fifteenth of December, eighteen hundred and thirty-six, as- 
sent to the provisions of said Act," enacts that said State be 
admitted, &c. 

As a prelude to the discussion of this bill, Mr. Morris, Senator 
from Ohio, moved to strike out this preamble, as asserting what 
was not the fact, namely, that the Convention, which undertook 
to assent to the change of boundaries required by Congress, was 
a legal Convention ; which motion he afterwards varied by 



CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 189 

moving an amendment to the preamble, recapitulating the pro- 
ceedings in Michigan under the Act of June 15, 1836, but ex- 
pressing or implying no opinion as to the validity of the Con- 
vention. The result of the discussion was, that the bill, as 
modified by him, was finally passed and approved January 26, 
1837, and the State thereby admitted into the Union.^ 

§ 201. Tested by the canons laid down in previous sections 
of this chapter, it is easy to see that neither of the three Con- 
ventions concerned in the formation of Michigan into a State 
was regular, or, strictly speaking, legitimate. But there was, 
nevertheless, a difference between them in respect of the de- 
grees of their irregularity, the first and third being far more 
obnoxious to exception than the second. 

The first Michigan Convention — that by which the Constitu- 
tion under which the State finally became a member of the 
Union was in the main framed — was an illegitimate body, be- 
cause called by the Territorial legislature, not only without the 
authorization of Congress, but implicitly, at least, against its 
will.2 As we have seen, the people of the Territory had for sev- 
eral years been endeavoring, unsuccessfully, to procure the pas- 
sage by Congress of an enabling Act, permitting the erection 
of the Territory into a State. What Congress, which alone had 
jurisdiction to act in the matter, had refused to permit, obvi- 
ously could not be done but in derogation and defiance of its 
authority. 

§ 202. The second Convention, assembled under the Act of 
Congress of June 15, 1836, was irregular, as having been called, 
not without an apparent authorization of Congress, but by an 
unauthorized and unconstitutional body within the Territory, the 
so-called State legislature. The Act of January 15, 1836, as we 
have seen, admitted the Territory into the Union, " on condition 
that a Convention, specially called for the purpose," should 
assent to the boundaries thereby prescribed. There being no 
specification of the body by which the Convention should be 
called, the question as to the body intended, or most proper, to 
perform the duty, was one of presumptions. There were in the 
Territory two bodies which might be conceived to be authorized 
to perform it : first, the Legislative Council, the proper law-mak- 
ing power of the Territory, elected under the authority of Con- 

1 U. S. Stat, at Large, Vol. V. p. 144. 

2 See post, § 209, note, Opinion of Attorney-General of the United States. 



190 CHAEACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 

gress ; the body by which the Convention had been called that 
had framed the State Constitution, referred to in the Act ; and, 
secondly, the body elected under the new Constitution, and 
denominated the State legislature — an assemblage of men 
unknown to the only laws in force in the Territory, those of Con- 
gress ; and not only so, but so far antagonistic to Congress itself, 
that if the former had any validity whatever, as a local legisla- 
ture for the Territory, the latter had absolutely none ; the juris- 
dictions of the two being exclusive of each other. Under these 
circumstances, it is clear, that when Congress prescribed the 
calling of a Convention to d-o an act which was to impart its 
first and only vitality to the State organization, it did not intend 
to call upon a member of that embryo organization to initiate 
such Convention ; but rather upon the legislative branch of the 
Territorial government, created by itself, in the enjoyment of all 
its functions, and in every way qualified to perform the duty. 

§ 203. The third Convention, got together by a spontaneous 
movement of the people, to reverse the action of the second, 
was, if possible, the least regular, the most distinctly illegitimate, 
of the three. It was a body resting on the authority neither of 
Congress, the Legislative Council of the Territory, nor the sup- 
posed State legislature, but on that of individuals only, acting 
outside of the law. Under an established Territorial government, 
such a body would be revolutionary, even if resting on the vote 
of every inhabitant of the Territory, since no assemblage of citi- 
zens could have power to speak in the name of such govern- 
ment, much less in that of Congress, unless specifically author- 
ized by law. The Act of July 15, 1836, requiring a Convention 
to be called, furnished no such authorization. That it did not, 
was implicitly admitted by the public men and citizens generally 
of Michigan, since, in pursuance of it, they first proceeded to 
call such Convention through the State legislature, and only 
had recourse to the action of irresponsible caucuses, when the 
Convention called by the legislature had refused its assent to 
the condition of admission imposed by Congress, 

§ 204. Enough has, perhaps, been said to show the true char- 
acter of the third Michigan Convention, but the question of its 
regularity is so important, that I venture to borrow somewhat 
freely from the speeches of senators of the United States, made 
in the course of the discussion of the final bill for the admis- 
sion of Michigan into the Union. 



CHARACTER OP THE MICHIGAN CONVENTIONS OP 1835-6. 191 

After rehearsing the facts relating to the three Conventions, 
substantially as detailed above, the Hon. John C. Calhoun said : — 

" Such are the facts out of which grows the important ques- 
tion, — Had this self-constituted assembly " (the third Conven- 
tion) " the authority to assent for the State ? Had they the 
authority to do what is implied in giving assent to the condition 
of admission ? That assent introduces the State into the Union, 
and pledges in the most solemn manner to the constitutional 
compact, which binds these States in one confederated body ; 
imposes on her all its obligations, and confers on her all its bene- 
fits. Had this irregular, self-constituted assemblage the authority 
to perform these high and solemn acts of sovereignty in the name 
of the State of Michigan ? She could only come in as a^ State ; 
and none could act or speak for her without her express author- 
ity ; and to assume the authority without her sanction, is nothing 
short of high treason against the State. 

" Again ; the assent to the conditions prescribed by Congress 
implies an authority in those who gave it to supersede in part 
the Constitution of the State of Michigan ; for her Constitution 
fixes the boundaries of the State as part of that instrument 
which the condition of admission entirely alters, and to that ex- 
tent the assent would supersede the Constitution : and thus the 
question is presented, whether this self-constituted assembly, 
styling itself a Convention, had the authority to do an act which 
necessarily implies the right to supersede in part the Constitu- 
tion. But, further: the State of Michigan, through its legis- 
lature, authorized a Convention of the people, in order to deter- 
mine whether the condition of admission should be assented to 
or not. The Convention met ; and, after mature deliberation, 
it dissented to the condition of admission ; and thus again the 
question is presented, whether this self-called, self-constituted 
assemblage, this caucus — for it is entitled to no higher name — 
had the authority to annul the dissent of the State, solemnly 
given by a Convention of the people, regularly convoked under 
the express authority of the constituted authorities of the 
State ? 1 

1 Mr. Calhoun, in this speech, commits the error of supposing the second Con- 
vention, called by the so-called State legislature, to be regular. It has already 
been seen, that this was certainly not so, and it will be shown in a subsequent 
section, on high constitutional authority, that the position assumed on that sub- 
ject, in previous sections, is the true one. See § 208, post. 



192 CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 

" If all, or any of these questions," he continued, " be an- 
swered in the negative ; if the self-created assemblage of 
December had no authority to speak in the name of Michigan ; 
if none to supersede any portion of her Constitution ; if 
none to annul her dissent to the condition of admission regu- 
larly given by a Convention of the people of the State, convoked 
by the authority of the people of the State, to introduce her on 
its authority would be not only revolutionary and dangerous, 
but utterly repugnant to the principles of our Constitution. 
The question then submitted to the Senate is, had that assem- 
blage the authority to perform these high and solemn acts ? 

" The chairman of the Committee on the Judiciary holds that 
this self-constituted assemblage had the authority ; and what is 
his reason ? Why, truly, because a greater number of votes 
were given for those who constituted that assemblage than for 
those who constituted the Convention of the people of the State, 
convened under its constituted authorities. This argument re- 
solves itself into two questions : the first, of fact, and the second, 

of principle. I shall not discuss the first I come to the 

question of the principle involved ; and what is it ? The argu- 
ment is, that a greater number voted for the last Convention 
than for the first, and, therefore, the acts of the last, of right, 
abrogated those of the first ; in other words, that mere numbers, 
without regard to the forms of law or the principles of the Con- 
stitution, give authority. The authority of numbers, according 
to this argument, sets aside the authority of law and the Con- 
stitution. Need I show that such a principle goes to the entire 
overthrow of our Constitutional government, and would subvert 
all social order ? It is the identical principle which prompted 
the late revolutionary and anarchical movement in Maryland, "^ 
and v\^hich has done more to shake confidence in our system of 
government than any event since the adoption of our Constitu- 
tion ; but which, happily, has been frowned down by the patri- 
otism and intelligence of the people of that State." ^ 

1 The movement referred to was one organized in Maryland to call a Conven- 
tion " by the inherent and unalienable rights of the people, and, without a legis- 
lative Act, to alter and change the Constitution of the State." The ground on 
which it was justified, was, that the government of the State did not represent 
the voice of the numerical majority of the people, and that the authority of law 
and Constitution was nothing against that of numbers. 

2 Benton's Air. Deb. in Cong., Vol. XIII. pp. 73, 74. 



CHARACTER OP THE MICHIGAN CONVENTIONS OF 1835-6. 193 

§ 205. On the same side followed the Hon. Mr. Ewing, of 
Ohio, in an argument so lucid and satisfactory that, at the risk 
of extending this discussion too far, I extract from it the follow- 
ing passage, relating to the evidence tending to show that the 
third Michigan Convention in fact represented the people of the 
Territory. He said : — 

" An assemblage of the people, in meetings which are famil- 
iarly denominated caucuses, was held in some of the counties, 
and mutually agreed to call a new Convention. Committees 
get together, and, after consultation, publish a time and place 
at which it is to assemble. The whole matter was utterly un- 
authorized, save by party organization, and was the effect of 
such organization. Will any man dispute it ? Will any man 
pretend that this latter Convention was the effect of a simulta- 
neous and spontaneous impulse of the whole people of Michi- 
gan ? 1 Is there any the least proof of such being the fact ? 
The Convention originated in county calls ; and all the counties 
but two joined in the plan, and held elections for delegates. 
What evidence is there of any regularity in these elections ? 
Let us look at the papers. We have, to be sure, the Act of the 
Convention itself, giving the assent of the State to the Act of 
admission, and which was transmitted to the President of the 
United States. And we have the certificate of General Wil- 
liams, said to have been the presiding officer of the Convention, 
and the names of the delegates. But there is not any official 
act or signature of any officer known to the laws either of Michi- 
gan or of the United States ; not the slightest proof of the elec- 
tion or qualification. That paper, containing the assent of 
Michigan in a matter so important, is not at all authenticated. 
Where do you find the law according to which it was con- 
ducted ? There is none. It rests on nothing. There was a 
meeting of certain individuals held at a place called, I believe, 
Ann Arbor ; and we have certain resolutions of theirs, which are 
to avail against the doings of a Convention held in pursuance 
of a law of the State, and all whose acts are fully and legally 

1 Had it been the effect of such an impulse, the case would have been no bet- 
ter. It will not do to admit, that the inhabitants of a Ten-itory can, even by a 
perfectly unanimous vote, destroy a political organization set over them by Con- 
gress, and substitute for it one of their own creation. 
13 



194 CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 

authenticated. I cannot recognize such a paper. I should do 
violence to my own judgment should I receive it. Even the 
chairman of the Judiciary Committee could not do it. He 
called upon the senators elect (and whose admission here is to 
follow the passage of the bill) to say that everything at this 
self-styled Convention was well and duly conducted ; and they 
do say so, and give the private letters of certain individuals to 
that effect. And they give, further — and that I understand to 
be the evidence principally relied on — an article from a Detroit 
newspaper, stating that such an election was had, such Convention 
held, 3000 more votes were given for the delegates to this last 
Convention than for those who constituted the first Convention.^ 
This, sir, is the evidence to support an organic law of a new 
State about to enter the Union ! Yes, of an organic law, the 
very highest act a community of men can perform. Letters, 
referring to other letters ! and a scrap of a newspaper! " ^ 

§ 206. On the other hand, among the numerous and able 
speeches maintaining the regularity of the Convention, that 
which expounded most fearlessly the principle upon which alone 
it could be justified, was that of Senator Niles, of Connecticut. 
He said : — 

" The question before the Senate he regarded a very simple 
one ; it was really a question of facts ; merely, whether the con- 
dition of the Act of Congress of last session, providing for the 
admission of Michigan into the Union, had been complied with. 
In considering this question, gentlemen had gone into the first 
principles of government, and made what he regarded a bold 
attack upon popular power, on the fundamental principle of 
popular sovereignty, which lies at the foundation of all our 
institutions. These doctrines were rather antiquated ; they 
belonged to the school of the Restoration in England, and the 
political writings of Sir Robert Filmer ; they were the present 
doctrines of the conservatives in all the governments in Europe 
.... the doctrines to which the ' Alien and Sedition laws,' 

and other kindred measures, owed their origin And what 

were those doctrines ? They were, that the people could not be 

1 By the first Convention, the speaker means what 1 have designated the 
second. 

2 Benton's Abr. Deb. in Cong., Vol. XIII. p. 78. 



CHAEACTER OP THE MICHIGAN CONVENTIONS OF 1835-6. 195 

trusted ; that they were their own worst enemies ; that all the 
disorders, real or imaginary, that prevailed, were attributable to 
a wild spirit of democracy — to popular frenzy. An honest and 
fearless expression of opinion concerning men and measures, 
was denounced as a spirit of insubordination, disorganization, 
and rank jacobinism. A distinguished leader of that party, 
now no more .... I allude .... to Fisher Ames .... de- 
clared, that the disease which threatened general and universal 
ruin to our institutions and our future prospects, was rooted 
deep ; that it had found its way into the very hearts of the peo- 
ple. This disease was democracy; it was the will and sover- 
eignty of the people And it was the aim of those in 

authority to put down that wild spirit of democracy by the strong 
arm of power, and to maintain their authority, not through the 
public will, and as an emanation from it, but in opposition to 
it ; in defiance of it. It was for this purpose that the Alien 

and Sedition laws were passed But that great scheme 

failed ; and are its exploded, reprobated doctrines now to be 
revived ? Are we now to be told that there is no political power 
remaining in the people ; that having established and put in 
operation governments, they have parted with all political power 
whatever ; that they cannot revise or new-model this form of 
gov-ernment they have themselves established, unless in pursu- 
ance of a provision in the Constitution, or in accordance with 
a law of the legislature ? This is maintaining that sovereignty 
resides in the constituted authorities and not in the people at 
large; it is raising the creature above his creator; the agent 
above the principal. It is exalting the legislature above, and 
making it independent of, the constituent body. The Con- 
stitutions of most of the States contain some provisions for 
altering or amending them ; some, through the agency of a Con- 
vention, and some, otherwise. But suoh constitutional provis- 
ion is not inconsistent with, and cannot take away, the right and 
power of the people, acting in tht;ir primary, original capacity, 
to change their system of government. This is a right which 
they have not delegated, and which, of course, must abide with 
the people at large. Conventions of the people may be called, 
and often are, in pursuan^ie of a law of the legislature ; yet this 
is a mere matter of convenience. But does the law confer on 
them their power ? That is the question. If it does, then a 



196 CHARA.CTER OP THE MICHIGAN CONVENTIONS OP 1835-6. 

legislature can grant to another body greater power than it pos- 
sesses itself; even the power to change or destroy those very 
forms under which it exists ; a power to destroy the legislature 
itself. This is preposterous, and shows the absurdity of the 
principle contended for. If a Convention does not derive its 
power from the legislature, from whence can it derive it except 
from the people in their primary, elementary capacity, and wholly 
independent of the legislature and constituted authorities ? If 
this is not a true idea of a Convention of the people, he should 
like to be informed what a Convention is. The senator from 
South Carolina (Mr. Preston) asks, who and what are the peo- 
ple ? . . . . The people, in one sense, are the whole population 
of a State ; but, in a political sense, the people were that por- 
tion of the population which possessed the political power in a 
State ; it did not mean women or children, but the whole body 
of citizens with whom the political power resided." ^ 

§ 207. The question of the validity of the first Michigan Con- 
vention as well as of the Constitution and State government 
erected by it, have been the subject of judicial determination. 
The so-called legislature of Michigan, elected under the Con- 
stitution in anticipation of admission into the Union, met and 
organized on the 3d of March, 1835. On the 26th of March, 
ISSg, ten months before Michigan was admitted into the Union, 
this legislature incorporated the members of " The Detroit Young 
Men's Society," and to that society accrued, as was claimed, 
the title to certain real estate in Detroit. Ejectment was brought 
and defended by the defendants in possession, on the ground 
that the society was not a corporation or body politic, in the law, 
capable to take or hold the premises in question, nor to exercise 
any corporate rights under color of the Act of incorporation, for 
the reason, that there was no legal State government, and, con- 
sequently, no State legislature competent to pass laws, at the 
time the Act was passed, within the Territory of Michigan. The 
argument, in brief, was, that g. Territorial and State government 
cannot coexist within the samt Territory ; that the former hav- 
ing been established by Congress, with whom rests the exercise 
of Territorial sovereignty, it must continue to exist, until regu- 
larly superseded by the power which created it, which, in the 
case of Michigan, did not occur until the State was admitted 
I Bentou's Abr. Deb. in Cong., Vol. Xill. pp. 90-92. 



CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 197 

into the Union, January 26, 1837 ; or, at the earliest, until the 
Act of conditional admission of June 15, 1836. 

The Supreme Court of Michigan, however, held that the 
Society was a valid corporation, the Territory having been, it 
was said, transformed into a State on the adoption of the Con- 
stitution by the people, October 5th, 1835 ; that the legislature, 
organized in November following, was a legitimate legislature ; 
that Article V. of the compact contained in the Ordinance of 
1787, "secured absolutely and inviolably to the people of the 
Territory of Michigan, as established by the Act of Congress of 
January 11, 1805, the right to form a permanent Constitution 
and State government, whenever said Territory should contain 
sixty thousand free inhabitants ; that that right could in no way 
be modified or abridged, or its exercise controlled or restrained, 
by the general government ; that the assent of Congress to the 
admission of Michigan into the Union, was only necessary, 
because the older States, represented in Congress, possessed the 
physical power to refuse a compliance with the terms of com- 
pact contained in the Ordinance of 1787, and there was no third 
party to which the State could resort to enforce such compli- 
ance ; and that the right to such admission, secured by Article 
V. of the Ordinance, became absolute and unqualified, on the 
adoption of the Constitution of the State, and the organization 
of the State government." ^ 

Upon this decision a writ of error was taken to the Supreme 
Court of the United States, by whom the case was dismissed 
for want of jwrisdiction. In deciding the case, the Court held, 
that an objection to the validity of a statute, founded upon the 
ground that the legislature which passed it were not competent 
or duly organized under Acts of Congress or the Constitution, so 
as to pass valid statutes, is not within the cases enumerated in 
the twenty -fifth section of the Judiciary Act, and,' therefore, that 
the Court had no jurisdiction over the subject ; that, in order to 
give the Federal Supreme Court jurisdiction, the statute, the 
validity of which is drawn in question, must be passed by a 
State, a member of the Union, and a public body owing obedi- 
ence and conformity to its Constitution and laws ; that if public 
bodies, not duly organized or admitted into the Union, under- 
take, as States, to pass laws which might encroach on the 
1 Scott V. The Detroit Young Men's Society's Lessee, 1 Doug. Mich. R. 119. 



198 CHAEACTER OF THE MICHIGAN CONVENTIONS OP 1835-6. 

Union or its granted powers, such conduct would have to be 
reached either by the power of the Union to put down insurrec- 
tions, or by the ordinary penal laws of the States or Territories 
within which these bodies are situated and acting, but that their 
measures are not examinable by the Supreme Court of the 
United States on a writ of error.i 

§ 208. A very able dissenting opinion was, however, delivered 
by Justice M'Lean, in which he asserted the jurisdiction of the 
court. In the course of this opinion, he said : — 

" No serious objection need be made, in my judgment, to the 
assemblage of the people in Convention " (the first Convention) 
" to form a Constitution, although it is the more regular and 
customary mode to proceed under the sanction of an Act of 
Congress. But, until the State shall be admitted into the 
Union by an Act of Congress, the Territorial government re- 
mains unimpaired. No act of the people of a Territory, without 
the sanction of Congress, can change the Territorial into a State 
government. The Constitution requires the assent of Congress 
for the admission of a State into the Union ; and ' the United 
States guaranty to every State in the Union a republican form 
of government.' Hence the necessity, in admitting a State, for 
Congress to examine its Constitution. The Act ' to incorporate 
the Detroit Young Men's Society ' was the exercise of sover- 
eign power, a power totally repugnant to the sovereignty of 
the Union in its Territorial form. Until the 26th of January, 
1837, Michigan was not admitted into the Union and recognized 
as a State. Whatever effect this admission may have, by way 
of relation, on the exercise of the political powers of the State 
prior to that time, is not now the question. The question of 
jurisdiction relates to the time the Act was passed and its valid- 
ity. This Act of incorporation was repugnant to the Constitu- 
tion of the United States, under which the Territorial govern- 
ment was organized. It was repugnant to the laws of Congress 
which formed that organization. It was an exercise of sover- 
eignty incompatible with the sovereignty of the Union in all its 

J Scott V. Jones, Lessee of the Detroit Y. M. Soc, 5 How. (U. S.) R. 343. 
For a decision, on the other hand, denying the validity of the State govern- 
ment of Michigan before the admission of the State into the Union, see Myers 
V. The Manhattan Bank, 20 Ohio R. 283, — a decision, for every reason, of 
authority at least equal to that of the Michigan Court. 



CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 199 

legal forms. And this Act was declared by the Supreme Court 
of Michigan to be valid. I cannot conceive a clearer case for 

jurisdiction The two sovereignties of the State and the 

Territorial government cannot exist at the same time within the 
same limits." ^ 

§ 209. As the majority of the court expressly announced in 
this case that they decided no point but that of jurisdiction, it 
cannot be assumed that they would have coincided with Justice 
M'Lean in the points discussed by him, had they sustained the 
jurisdiction. But certainly there is deducible from the opinion 
of the court an inference that the Territory of Michigan did not 
become a State for the purpose of giving rights, which might be 
the subject of litigation before the courts of the Union, in other 
words, did not become a State for all purposes, until admitted 
into the Union. The only observation I wish to make upon the 
case is, that our Constitution knows no purgatorial condition, 
intermediate between that of a Territory and that of a State.^ 
So long as a political organization is a Territory, it is not in any 
sense or for any purpose a State, and, vice versa. Once a Terri- 
tory always a Territory, until a change be effected by an Act of 
Congress. A Territory may seize upon the reins of power, and 
make of itself, de facto, a State, but when it does so it departs 
from legal and regular courses, and enters upon the field of 
revolution.^ 

§ 210. In the cases of the other States whose Constitutions 
were framed partly or wholly by Conventions called without en- 

i Scott V. Jones, Lessee, &c., 5 How. (U. S.) R. 380-382. 

2 On this subject see a speech of Henry Winter Davis, in Appendix to Vol. 
XXXVn. Cong. Globe, pp. 261, 262. 

3 In connection with the subject discussed in the foregoing sections, see an 
opinion of Attorney-General B. F. Butler, officially given, respecting certain 
movements made in Arkansas in 1835, with a view to erect the Territory of that 
name into a State, without an enabling Act. The Governor of the Territory, ap- 
prehending that the Territorial legislature, or the people of the Territory, would 
call a Convention to form a State Constitution without the authority of Congress, 
wrote a letter to the President of the United States, asking instructions for his 
guidance in such a case. This letter being referred to the Attorney-General for 
his opinion on the constitutional and legal questions presented, that officer dis- 
cussed at length two questions, stated by him thus : — 1. As to the power of the 
Territorial legislature to pass laws authorizing the formation of a Constitution 
and State government ; and, 2. As to the right and authority of the citizens of 
the Territory to take measures for that purpose, and the extent to which such 



200 OTHER CONVENTIONS ASSEMBLED WITHOUT ENABLING ACTS. 

abling Acts, there are. no circumstances that require extended 
notice, except in that of Kansas. Arkansas framed her Consti- 
tution in January, 1836 ; Florida, in January, 1839 ; Iowa, in 
November, 1844, but modified it, under the requisition of Con- 
gress, in relation to boundaries, in May, 1846 ; Wisconsin, in 
February, 1848 ; California, in October, 1849 ; Oregon, in Sep- 
tember, 1857 ; and Nevada, (her first, which was rejected) in .the 
year 1863. As we have already intimated, these States were all 
of them, excepting Oregon, formed under a claim of right aris- 
ing from stipulations in treaties or deeds of cession directly 
binding the United States to admit them upon the happening 
of certain contingencies. Generally, the right thus secured was 
kept prominently in view in the discussions attending the tran- 
sition from the condition of Territories to that of States, and 
many of the Conventions carefully recited in the preamble to the 
Constitutions framed by them the terms of the treaty or deed of 
cession by which their right was guaranteed. Thus the preamble 
to the Constitution of Arkansas contained the following recital : — 

" We, the people of the Territory of Arkansas, by our repre- 
sentatives in Convention assembled, at," &c., .... " having 
the right of admission into the Union .... by virtue of the 
treaty of cession by France to the United States of the Prov- 
ince of Louisiana, in order to secure to ourselves," &c. 

The Florida Constitution contained a similar clause, but 

proceedings, if it be lawful to enter on them at all, may properly be carried, con- 
sistently with the Constitution and laws then in force. 

The answers given to these questions are eminently sensible and instructive, 
but are too long for insertion here. To the first question, after considering the 
organic law of the Territory, and comparing it with the Federal Constitution, he 
answers, in substance, that to suppose such a power in the Territorial legislature, 
involving, as it would, that of altering or abrogating the Territorial government 
established by the Act of Congress, would be manifestly absurd. The second 
question he answers by saying, that the inhabitants can legally take no step to- 
ward the formation of a Constitution or State government that will be of any 
validity without the previous authorization of Congress. Still the people have 
a right, he says, to assemble and petition the government for a redress of griev- 
ances ; and if they throw their petition into the form of a Constitution and accom- 
panying memorial praying admissi(?n into the Union, he perceived no legal ob- 
jection to their doing so, nor to any measures taken to collect the sense of the 
people in respect to the same. — Opinions of the Attorneys-General, Vol. II. p. 726. 
See also Webster's Works, Vol. VI. p. 485, where a similar sentiment is ex- 
pressed. 



KANSAS CONVENTION OF 1855. 201 

basing the right to admission on the treaty with Spain, before 
referred to, as that of Tennessee had based the right in the case 
of that Territory, on the deed of cession from North Carolina. 

Oregon, alone of all the States admitted into the Union, can 
point neither to an enabling Act of Congress authorizing her to 
form a Constitution and State government, nor to a stipulation 
giving her inhabitants the right to be admitted into the Union, 
on a contingency specified, and thus after a sort excusing them 
for a clamorous assertion of the right, when it seemed to be un- 
reasonably withheld. The conduct of that Territory, therefore, 
in anticipating the action of Congress, was not only irregular 
and illegal, but inexcusable. 

Respecting the mode in which the Conventions in these sev- 
eral cases were called, it is sufficient to say that it was, by the 
action of the Territorial legislatures, or of officers connected with 
the administration of the Territorial governments. Thus, those 
of Arkansas, Florida, Iowa, Oregon, and Nevada, were called 
by the legislative Assemblies of those Territories respectively, and 
that of California by General Riley, military governor of that 
Territory, acting at the instance of General Taylor, President of 
the United States. 

§ 211. Of the three Conventions called to frame a Constitu- 
tion for the State of Kansas, the first was assembled by a spon- 
taneous movement among the inhabitants of the Territory, with- 
out the authority of law. 

The first step was the calling of a meeting by " many voters," 
at Lawrence, on the 14th of August, 1855, " to take into con- 
sideration the propriety of calling a Territorial Convention prelim- 
inary to the formation of a State government, and other subjects 
of public interest." At this meeting were passed resolutions 
requesting " all bond fide citizens of Kansas Territory " to elect 
in their respective election districts, in mass Convention or other- 
wise, three delegates for each representative in the legislative 
Assembly, according to the proclamation of Governor Reeder of 
the 10th of March previous, to assemble in Convention on the 
19th of September, 1855, " to consider and determine upon all 
subjects of public interest, and particularly upon that having ref- 
erence to a speedy formation of a State Constitution, with an 
intention of an immediate application to be admitted as a State 
into the Union of the United States of America." 



202 CHARACTER OP THE KANSAS CONVENTION OF 1865. 

Two weeks before the assembling of the Convention thus 
called, a second meeting was held at Big Springs, at which the 
project of holding a Convention for the pm-pose indicated was 
commended, and the determination expressed to resist unto 
blood the laws of the " spurious legislature " of the Territory, 
should peaceable remedies fail. The reference to the spurious 
legislature was aimed at the legislative Assembly of the Territory 
organized under the auspices of the United States government, 
ostensibly by the inhabitants of the Territory, but, as it was 
charged, in fact, by an invading horde of pro-slavery voters from 
Missouri. The meeting then proceeded openly to recommend 
" throughout the Territory the organization and discipline of vol- 
unteer companies," for the purpose of giving effect to the pre- 
ceding resolutions. 

In pursuance of the recommendation of these meetings, a 
Convention was held at Topeka on the 19th of September, at 
which it was determined to hold another Convention at the 
same place, on the fourth Tuesday of October, for the purpose 
of forming a Constitution and State government ; and, to this 
end, such proceedings were had as were deemed necessary for 
giving the notices, conducting the election of delegates, making 
the returns, and assembling the Convention. The Convention 
met at Topeka on the fourth Tuesday of October, 1855, and 
formed a Constitution, which, being submitted to the people, 
was, by a large majority of those who voted, adopted.^ 

§ 212. In passing judgment upon the Topeka Convention, it 
is not within the scope of my design to inquire whether or not 
the facts of the situation justified the calling of that body, as 
one step in a revolution, but simply whether it was a legitimate 
Constitutional Convention. Viewed thus, in its legal aspects, it 
is impossible to regard it as other than illegitimate. It was 
called neither by Congress, the Territorial legislature, nor any offi- 
cer connected with the public administration in the Territory, 
but in opposition to and in defiance of them all. Such a body 
will not for a moment bear examination on legal or constitu- 
tional grounds. 

Neither the Convention itself, nor those who called it, so far as 

1 See the Report of the Senate Committee on Territories of March 12, 1856 ; 
also the Minority Report, from the minority of the same Committee, respecting 
the proceedings of this Convention and the affairs of Kansas in general. 



KANSAS CONVENTION OF 1857. 203 

I am aware, ever pretended that they were proceeding in the line 
of law and precedent ; but, despairing, as was openly intimated, 
in the resolutions passed by the mass meetings which called that 
body, of securing their rights under a government foisted upon 
them by their pro-slavery enemies, they notified the world that 
they proposed to seek them at the point of the bayonet, and 
organized themselves into military companies, accordingly. Al- 
though, therefore, the friends of Kansas in Congress, in their 
eager endeavors to secure for its inhabitants their civil and politi- 
cal rights, by admitting them into the Union, under the Topeka 
Constitution, made use of arguments which seemed to vindicate 
the legality of the body which framed it, still candor compels 
me to admit, that the enemies of equal rights not only had the 
best of the argument, but alone used the language of truth and 
soberness. The case was, perhaps, the not uncommon one of 
the law and substantial justice appearing upon opposite sides 
in a controversy. However that may be, it is certain that 
President Pierce was right, when, in his message of January 
24, 1856, relating to the proceedings of the Topeka Conven- 
tion, he said of them : " No principle of public law, no practice 
or precedent under the Constitution of the United States, no 
rule of reason, right, or common sense, confers any such power 
as that now claimed by a mere party in the Territory. In fact, 
what has been done is of a revolutionary character. It is avow- 
edly so in motive and in aim, as respects the local law of the 
Territory. It will become treasonable insurrection if it reach the 
length of organized resistance by force to the fundamental or 
any other federal law, and to the authority of the general gov- 
ernment." 

§ 213. In the mean time, the first Territorial legislature of Kan- 
sas had passed an Act to take the sense of the people on the 
question of calling a Convention to form a State Constitution, 
the vote to be taken at the election in October, 1856. At that 
election, accordingly, a vote was taken at which a majority of 
the votes cast — the free-State men not voting — was in favor 
of calling such a Convention. In pursuance of this vote, the 
Territorial legislature, on the 19th of February, 1857, passed 
another Act providing for the election, on the 15th of June follow- 
ing, of delegates to a Convention, to meet on the first Monday 
of September, for the purpose of framing a Constitution prepara- 



204 CHARA.CTER OF THE KANSAS CONVENTION OF 1857. 

tory to admission into the Union. The election of delegates 
was held on the day appointed, the Free-State men still with- 
holding their votes, the entire vote for delegates being about 2200. 
The delegates elected assembled at Lecompton on the 5th of 
September, adjourned over to October, and then reassembling, 
framed the instrument known as the Lecompton Constitution. 

§ 214. Although there is no doubt that this Convention was 
called by the Territorial legislature, with the consent of the execu- 
tive of the United States, still. Congress not having authorized 
it, it was unquestionably irregular and illegal. To use the lan- 
guage employed by President Buchanan at a later day, to char- 
acterize the action of the Topeka Convention, that of the 
Lecompton Convention was " a usurpation of the same char- 
acter as it would be for a portion of the people of any State to 
undertake to establish a separate government within its limits, 
for the purpose of redressing any grievance, real or imaginary, 
of which they might complain, against the legitimate State 
government." To which he added, that " such a principle, if 
carried into execution, would destroy all lawful authority, and 
produce universal anarchy." The view thus entertained by 
President Buchanan, of the Topeka Convention, however, was 
not that taken by him of its successor, the Convention held at 
Lecompton, on the call of the Territorial legislature. In the 
same paragraph of his message, from which the above passage 
is extracted, the President vindicated the regularity of the latter 
Convention, on the ground that it had virtually been called in 
pursuance of an enabling Act. The foundation for this asser- 
tion he found in the provisions of the Kansas-Nebraska Act, as 
it has been called, which formed the organic law of the territory 
of Kansas. Section 14 of that Act declared it to be the true 
intent and meaning thereof, " not to legislate slavery into any 
Territory or State, nor to exclude it therefrom, but to leave the 
people thereof perfectly free to form and regulate their domestic 
institutions in their own way, subject only to the Constitution of 
the United States." 

Respecting this clause of the Act, President Buchanan said : 
" That this law recognized the right of the people of the Terri- 
tory, without an enabling Act, to form a State Constitution, 
is too clear for argument. For Congress ' to leave the people 
of the Territory perfectly free,' in framing their Constitution, ' to 



CHARACTER OP THE KANSAS CONVENTION OP 1857. 205 

form and regulate their domestic institutions in their own way, 
subject only to the Constitution of the United States,' and then 
to say, that they shall not be permitted to proceed and frame 
the Constitution in their own way, without express authority 
from Congress, appears to be almost a contradiction in terms." 
§ 215. For a refutation of this position of President Buchanan, 

— if that can need refutation which upon its face is absurd, — 
I shall avail myself of a speech of the Hon. Henry Winter 
Davis, of Maryland, made when the Lecompton Constitution 
was under discussion in Congress. Having considered the 
question whether Congress may not, in certain cases, with 
propriety, ignore irregularities and admit Territories into the 
Union whose Constitutions have been framed without the pre- 
vious authorization of Congress, he proceeds as follows : — 

"But the argument is irrelevant; for the question is not 
whether Congress may, in its discretion, recognize Constitutions 
formed by the people without authority of law ; but whether a 
Territorial legislature has, in point of law, authority to legalize 
the election of a Convention, to give the Convention itself a legal 
existence, to vest it with legal power to bind not merely the 
people, but the Congress ? No one denies the power of Con- 
gress to admit Tennessee and Florida, yet nobody ever asserted 
any legal validity in their proceedings before admission. 

" The language of the organic Acts, and the proceedings of 
Congress thereupon, are decisive. The Territories divide them- 
selves into two great classes. In Ohio, Illinois, Indiana, Mis- 
souri, Mississippi, Alabama, Arkansas, Tennessee, and Michigan, 
the legislature had ' power to make laws, in all cases, for the 
good government of the people of the said Territory, not repug- 
nant to, or inconsistent with, the Constitution and laws of the 
United States.' In Wisconsin, Minnesota, Oregon, Florida, 
and Iowa, the power of the legislatures was declared to extend 

— in the identical" words of the Kansas-Nebraska Act — ' to 
all rightful subjects of legislation, not inconsistent with the Con- 
stitution and laws of the United States.' 

" Congress has construed both forms of expression by passing 
enabling Acts for both classes. Not only for Ohio, Louisiana, 
Missouri, Mississippi, Alabama, Illinois, and Indiana, but also 
for Wisconsin, Minnesota, and Oregon,^ did Congress pass Acts 

1 This is a mistake. We have already seen, (§ 196, an<e,) that Oregon called 
the Convention which framed her first Constitution, without an enabling Act. 



206 CONDITIONAL ACT FOE THE ADMISSION OF KANSAS. 

specially authorizing^ them to call a Convention and form a State 
government ; and, in every instance, excepting Wisconsin, those 
bills provided all the details of the Convention, the number of 
delegates, its time of assembling, the modes under which the 
delegates should be elected. It is plain. Congress thought the 
power of Congress ' to make laws in all cases,' necessarily ex- 
tended ' to all rightful subjects of legislation.^ It is plain, Con- 
gress thought neither form of expression authorized the tempo- 
rary Territorial government to create a Convention to form a 
Constitution, which would begin to operate only after the Terri- 
torial legislature itself had ceased. Its power to govern was 
confined to the Territory, a temporary contrivance for tempo- 
rary purposes ; involved in all the local interests and conflicts 
of Territorial politics, and not safely to be intrusted with the 
providing for a Constitution. In a word, they were authorized 
to make laws to govern the Territory ; but a law for a Constitu- 
tional Convention was no law for governing a Territory at all. 

" The case is stronger under the Kansas Act, for it reserves to 
Congress the power to make two or more States or Territories 
out of that Territory ; and, if Congress have the right to make 
two States, it is absurd to suppose it gave the Territorial legisla- 
ture power to make one State of it." ^ 

§ 216. The application of the Territorial legislature, through 
its Convention for admission into the Union under the Lecomp- 
ton Constitution, although seconded by President Buchanan, 
and in general by the administration party in Congress, was 
substantially unsuccessful. After a long contest, the friends of 
the measure were forced to consent to a conditional admission, 
the bill, known as the English bill, which was finally passed, 
providing for admission of the State into the Union, on condi- 
tion that the people of Kansas should first vote to accept certain 
propositions, beneficial to their interests, and the Lecompton 
Constitution ; but further providing, that should the propositions, 
and^ with these, the Lecompton Constitution, be rejected, the 
people of the Territory should be at liberty to form for themselves 
a Constitution and State government by the name of Kansas, 
and might elect delegates for that purpose whenever^ and not 
before^ it should be ascertained by a census duly and legally 
taken, that the population of said Territory equalled or exceeded 
1 See Appendix to Vol XXXVII. Cong. Globe, p. 262. 



THIRD VARIETY OF CONVENTIONS HELD SINCE 1789. 207 

the ratio of representation for a member of the House of Repre- 
sentatives of the Congress of the United States. The Act then 
prescribed the mode in which the delegates, who might thus be 
elected, should proceed to form a Constitution, and provided for 
■ submission of the same to the people of Kansas, and for the 
admission of the State thus formed into the Union under it. 

In pursuance of this Act, the people of Kansas went into an 
election on the 3d of August, 1858, the result of which was, 
that the propositions of Congress, and, consequently, the Con- 
stitution submitted, were rejected by over ten thousand ma- 
jority. 

By this vote, the condition in which the Territory of Kansas 
was left was this : An enabling Act, passed by Congress, author- 
ized her people to form a Constitution and State government 
*' whenever, and not before," it should be " ascertained by a cen- 
sus duly and legally taken," that her population equaled or ex- 
ceeded the ratio of representation fixed by Congress for electing 
members of the national House of Representatives — that is. 
when its population should number 93,340. 

Such, however, was the rapidity with which the Territory was 
peopled, that on the first Tuesday of June, 1859, a Convention 
met at Wyandotte, in pursuance of a vote of the people of the 
Territory, by which a Constitution was framed, — the population 
at the time of the call of the Convention exceeding the number 
limited by the Act above named. Under this Constitution the 
Territory was afterwards admitted into the Union, January 29, 
1861. 

§ 217. 3. The third variety of Conventions, called since March 
4, 1789, consists of such as have been assembled for the revision 
of existing Constitutions of States, members of the Union. 

These may be subdivided into several classes, as follows : — 

{a). Such as have been convened, for legitimate constitutional 
purposes, regularly, that is — 

I. By the legislatures of the respective States, acting either — 

1. In pursuance of special provisions of such existing Consti- 
tutions, or — 

2. If no such provisions exist, under their general legislative 
authority. 

II. By special bodies created by the Constitution, called 
Councils of Censors. 



208 CONVENTIONS IN PURSUANCE OF CONSTITUTIONAL PROVISIONS. 

(&). Such as have been called, for legitimate constitutional 
purposes, irregularly, — that is, either — 

1. In disregard of constitutional provisions prescribing par- 
ticular modes in which amendments to the Constitution should 
be effected, or — 

2. In defiance of the existing governments of the States con- 
cerned, though in pretended conformity to constitutional prin- 
ciples. 

(c). The so-called Secession and Reconstruction Conventions 
held before and since the late civil war. 

These several classes will now be considered in the order 
indicated. 

§ 218. (a). I. 1. Of the first subdivision of the first class, 
comprising such Conventions as have been regularly called by 
legislative authority, exercised in pursuance of express constitu- 
tional provisions, there have been held seventeen Conventions.^ 

1 The following Conventions belong to this list: — Those of Georgia, 1795 
and 1798; Kentucky, 1799 and 1849; Delaware, 1831 and 1852; Mississippi, 
1832; Tennessee, 1834; Louisiana, 1844 and 1852; Illinois, 1847 and 1862; 
Ohio, Michigan, and New Hampshire, 1850 ; Iowa, 1857 ; and Maryland, 1864. 

In reference to one of the Conventions placed in this list, that of Delaware, 
1852, there has been much controversy in that State. The facts relating to 
the call of that body are as follows : — The Delaware Constitution of 1831 
contained this clause, — " No Convention shall be called but by authority of 
the people ; and an unexceptionable way of making their sense known will be 
for them to vote by ballot on the third Tuesday of May in any year, for or 
against a Convention ; and if a majority of all the citizens of the State having a 
right to vote for representatives vote for a Convention, the next General Assem- 
bly shall call one ; the majority of all the citizens of the State having a right to 
vote for representatives to be ascertained by comparing the number of votes for 
a Convention with the highest number of votes cast at either of the three preced- 
ing general elections." 

Feb. 26, 1851, an Act was passed by the General Assembly, taking the sense 
of the people as to the call of a Convention; and Feb. 4, 1852, was passed 
another Act, which, reciting that at the before appointed election there was a 
majority of votes for a Convention, called one accordingly, to meet at Dover on 
the first Tuesday of December following. Now, according to the rule laid down 
in the Constitution, there was not a majority of votes for this Convention, though 
there was a majority of all the votes cast. When the Convention met, there- 
fore, the legitimacy of the call was denied by some, on the ground that the un- 
exceptionable way pointed out in the Constitution was the only legal way that 
could be pursued. By those sustaining the legitimacy of the body, on the other 
hand, it was contended, that the clause of the Constitution was not peremptory, 



CONVENTIONS CALLED WITHOUT CONSTITUTIONAL PROVISIONS. 209 

As, in calling these Conventions, the requirements of the 
respective State Constitutions are believed to have been strictly- 
complied with, it is necessary only to point out the circumstance 
that they were all called by the direct action of the State 
legislatures. 

§ 219. 2. The second subdivision, consisting of Conventions 
called for legitimate constitutional purposes by the respective 
State legislatures, under their general legislative power, with- 
out the special authorization of their Constitutions, comprises 
twenty-five Conventions.^ 

The question of the legitimacy of Conventions thus called, 
I shall have occasion to consider in other parts of this work, 
when treating of the relations of legislatures to Conventions, 
and of the powers of the former resulting from those relations.^ 
I shall, therefore, here only observe, — 1. That, whenever a Con- 
stitution needs a general revision, a Convention is indispensably 
necessary ; and if there is contained in the Constitution no pro- 
vision for such a body, the calling of one is, in my judgment, 
directly within the scope of the ordinary legislative power ; and, 
2. That, were it not a proper exercise of legislative power, the] 
usurpation has been so often committed with the general acqui-, 
escence, that it is now too late to question it as such. It must| 
be laid down as among the established prerogatives of our Gen- 
eral Assemblies, that, the Constitution being silent, whenever 
they deem it expedient, they may call Conventions to revise 
the fundamental law. 

but recommendatory ; and of that opinion was the Convention — with which I 
am inclined to concur. 

1 am indebted for the facts detailed in this note to Hon. Willard Hall, of 
Wilmington, Delaware, who was a member of the Convention. 

J The Conventions embraced in this list are the following : — Those of Georgia, 
Jan. 4, 1 789, May 4, 1 789, and 1838 ; South Carolina, 1 790 ; New Hampshire, 1791; 
New York, 1801, 1821, and 1846; Connecticut, 1818; Massachusetts, 1820 and 
1853 ; Rhode Island, 1824, 1834, 1841, and 1842, held under the Charter govern- 
ment; Virginia, 1829, 1850, and 1864; North Carohna, 1835 ; Pennsylvania, 1837; 
New Jersey, 1844; Missouri, 1845, 1861, and 1865; and Indiana, 1850. 

In regard to the last Convention, it should be observed that, although there 
was contained in the Indiana Constitution of 1.816 power to the legislature to 
call a Convention every twelfth year thereafter, that is, in 1828, 1840, 1852, 
&c., the power was not pursued, but a Convention was called independently of 
it by an Act approved Jan. 18, 1850. 

2 Seepost, ch. vi., §§ 376-418, and ch. viii., §§ 571-576. 

14 



210 CONVENTIONS CALLED BY COUNCILS OF CENSOES. 

In three or four of the Conventions of this class, the objection 
has been raised, that they were illegitimate bodies, because 
called by the legislatures without special authority in the re- 
spective Constitutions. This was the case in the Virginia 
Convention of 1829, the Pennsylvania Convention of 1837, the 
New York Convention of 1846, and the Massachusetts Con- 
vention of 1853. But the objection has commonly been urged 
by a minority, whose party or other interests inclined them to 
look with disfavor upon any change of the existing Constitution. 
In a large proportion of these cases the objection seemed the 
more plausible, for the reason that there existed constitutional 
provisions for effecting specific amendments to the organic law 
in a more summary manner, by a vote of the people upon prop- 
ositions made by the General Assembly. There having been 
provided, it has been said, a mode in which constitutional 
changes might be effected, it was a violation of legal analogy 
to infer a power to do substantially the same thing in another 
way, not authorized specifically by the Constitution, — the well 
established rule being, that expressio unius est exclusio alterius. 
We shall, however, find occasion in a subsequent chapter to 
consider this subject more at large, and to doubt whether the 
maxim referred to, which undoubtedly furnishes a convenient 
rule of construction in relation to deeds and contracts between 
man and man, is applicable to the case of constitutional pro- 
visions.^ For om* present purpose, it may be regarded as 
settled, that the legislature of a State has authority to provide 
for calling a Convention, whenever there is no constitutional 
provision at all relating to amendments of the fundamental law, 
or the provisions are confined to the enactment of specific 
amendments, and a general revision is deemed necessary. 

§ 220. II. Of Conventions called regularly and for legitimate 
constitutional purposes, by special bodies created by the Con- 
stitution, called Councils of Censors, the only cases have oc- 
curred in Vermont. 

The first Vermont Constitution, that of 1777, provided. Sec. 

1 See j9os/, ch. viii., §§571-576. 

For discussions of the supposed irregularity of the Conventions mentioned, 
see Deh. Va. Conv. 1829, pp. 884, 885; Deh. Mass. Conv. 1853, Vol. I. pp. 35, 
83; Vol. III. pp. 123, 124, Speech of the Hon. Joel Parker; Deb. Pa. Conv. 
1837, Vol. I. pp. 183-187. 



CONVENTIONS IN DISREGARD OF CONSTITUTIONAL PROVISIONS. 211 

XLIV., that in 1785, and every seven years thereafter, there 
should be elected thirteen persons, to be called a Council of 
Censors, whose duty it should be to inquire generally into the 
public administration, and with power " to call a Convention, to 
meet within two years after their sitting, if there appears to 
them an absolute necessity of amending any article of this Con- 
stitution which may be defective, explaining such as may be 
thought not clearly expressed, and of adding such as are neces- 
sary for the preservation of the rights and happiness of the 
people." 

Under this provision. Councils of Censors have been chosen 
every seven years, from 1785 to 1862, by which numerous Con- 
ventions have been called,^ the regularity of which cannot be 
impeached. A similar provision was contained in the Pennsyl- 
vania Constitution of 1776, Sec. XL VII., but the Council held 
only two sessions, and failing to agree, no Convention was 
called. Afterwards, the legislature, in disregard of the Consti- 
tution, took upon itself to summon a Convention, which met in 
1789 and abolished the cumbrous provision. 

§ 221. (b). 1. Of the next class of Conventions, comprising 
such as have been called for legitimate constitutional purposes, 
but irregularly, in disregard of constitutional provisions pre- 
scribing particular modes in which alone amendments to the 
Constitution should be made, there have been but three : that 
of Pennsylvania of 1789; that of Delaware of 1792; and that 
of Maryland of 1850. A brief history of these will be given in 
the order in which they occurred. 

As stated in the last section, the Pennsylvania Constitution 
of 1776, Sec. XLVIL, provided a special apparatus for revising 

J See Appendix A, for a list of these Councils and Conventions. All the 
Councils, except those of 1799, 1806, 1813, and 1862, summoned Conventions, 
technically so called. Although the latter are perhaps properly the only Con- 
ventions, yet, considering that the function of the Councils is precisely that of 
a Convention, when confining itself to its normal duty of recommending Consti- 
tutional changes, I have reckoned those bodies in the list of Conventions. 
Viewing them thus, the so-called Convention in Vermont is but the people of 
the State, by a small body of representatives, at the second remove, instead of 
by the electors, at the first, ratifying the proposals of a Council performing the 
function of a Convention. As the Vermont Constitution styles this ratifying 
body a Convention, it has been included in the list, on the same ground as 
■were those which in the several States of the Confederation ratified the Federal 
Constitution. 



212 PENNSYLVANIA CONVENTION OF 1789. 

or amending that instrument, through the instrumentality, first, 
of a Council of Censors, and, secondly, if deemed necessary by 
the latter, of a Convention to be called by that body. The 
terms of this constitutional provision were identical with those 
of Section XLIV. of the Vermont Constitution above quoted, 
and indeed were the model after which the latter was drawn. 
But beside this section, there was inserted in the preamble to 
the Pennsylvania Constitution the following important restric- 
tive clause, namely : — 

. . . . " We, the representatives of the freemen of Pennsyl- 
vania .... do, by virtue of the authority vested in us by our 
constituents, ordain, declare, and establish the following declara- 
tion of rights and frame of government to be the Constitution 
of this Commonwealth, and to remain in force therein forever 
unaltered, except in such articles as shall hereafter, on expe- 
rience, be found to require improvement, and which shall, by the 
same authority of the people, fairly delegated, as this frame of 
government directs, be amended or improved," &c. 

§ 222. The Council of Censors having twice met — in 1783 
and 1784 — and having failed by a constitutional majority to 
agree upon calling a Convention, to consider amendments 
deemed necessary by a majority of that body, adjourned Sep- 
tember 25, 1784, to meet again on the day preceding the next 
general election ; but in fact never again convened. 

At the session of the General Assembly in March, 1789 — the 
vear preceding the time fixed by the Constitution for the meet- 
ing of the next Council of Censors — resolutions were passed 
calling the attention of the people to the subject of amending 
their Constitution, and suggesting that, should they concur with 
the House in the opinion that a Convention should be called for 
that purpose, it would be " convenient and proper for them to 
elect members of a Convention of the same numbers and in the 
like proportions for the city of Philadelphia and the several 
counties with those of their representatives in Assembly, on the 
day of the next general election, at the places and in the man- 
ner prescribed in cases of elections of members of Assembly by 
the laws of the State." The resolutions further provided, that 
on the pleasure of the people in the premises being signified to 
them at their next sitting, they would provide by law for the ex- 
penses of the Convention, and, if requested, would appoint the 
time and place for the meeting thereof. 



DELAWARE CONVENTION OF 1792. 213 

At the next session of the Assembly, in September following, 
it appearing to the satisfaction of that body, by petitions and 
the reports of members, communicating the results of their in- 
quiries during the vacation of the Assembly, that a Convention 
was expedient and proper in the general opinion of the people 
of the State, resolutions were passed calling a Convention, to 
meet at Philadelphia on the fourth Tuesday in November, 1789. 
Delegates were accordingly elected, and, assembling on the day 
appointed, framed and established the Constitution of 1790. 

§ 223. Article XXX. of the Delaware Constitution of 1776 
provided as follows : — 

" No article of the Declaration of Rights and Fundamental 
Rules of this State agreed to by this Convention, nor the first, 
second, fifth (except that part thereof that relates to the right of 
suffrage), twenty-sixth, and twenty-ninth articles of this Consti- 
tution, ought ever to be violated on any pretence whatever ; no 
other part of this Constitution shall be altered, changed, or dimin- 
ished, without the consent of five parts in seven of the Assembly, 
and seven members of the Legislative Counciiy 

As the Assembly contained seven members only, and the 
Legislative Council nine members, it is evident that no change 
whatever could be made in the Constitution, legally and consti- 
tutionally, save by the direct action of both the Assembly and 
the Legislative Council, and then only by a majority of five- 
sevenths of the one and seven-ninths of the other. The phra- 
seology being negative, no room was left for the employment of 
any alternative method. A Convention could not.be called for 
the purpose of changing or abolishing the Constitution without 
a palpable infringement of its provisions. 

Nevertheless, in 1791, amendments to the Constitution being 
very generally deemed necessary, the legislature passed an Act 
calling a Convention, with a view to effect them. In the pre- 
amble to this Act, the grounds upon which that body based its 
action are exhibited in the following terms : — 

" By the thirtieth article of the Constitution of this State, 
the power of revising the same, and of altering and amending 
certain parts thereof, is vested in the General Assembly ; and it 
appears to this House, that the exercise of the power of altering 
and amending the Constitution by the legislature would not be 
productive of all the valuable purposes intended by a revision, 



214 MAEYLAND CONVENTION OF 1850. 

nor be so satisfactory and agreeable to our constituents ; and 
that it would be more proper and expedient to recommend to 
the good people of the State to choose deputies for this special 
purpose to meet in Convention." Then follows the enacting 
clause authorizing the election of delegates to a Convention 
to change the Constitution. A Convention was accordingly 
elected, with the general approbation of the people of Dela- 
ware, by which a new Constitution was framed and put in 
operation in the following year. 

§ 224. The action of the people of Maryland, in calling the 
Convention of 1850, was similar to that just described. Section 
LIX. of the Maryland Constitution of 1776, contained this pro- 
vision : — 

" That this form of government, and no part thereof, shall be 
altered, changed, or abolished, unless a bill so to alter, change, 
or abolish the same shall pass the General Assembly, and be 
published at least three months before a new election, and shall 
be confirmed by the General Assembly after a new election of 
delegates, in the first session after such new election." 

The whole power of the State having, under the Constitu- 
tion of 1776, come to be exercised by a minority of the citizens, 
efTorts were repeatedly made, but without success, to induce the 
General Assembly to effect the needed changes in that instru- 
ment. In 1837, the impatience of the reform-party nearly led 
to hostile collisions with the existing government, — the former 
taking steps to call a Convention for the purpose of framing a 
new Constitution, without the authority and against the will of 
the General Assembly ; and the latter, through the State ex- 
ecutive, denouncing such an act as rebellious, and threatening 
with punishment all who should engage in it.^ At length, at 
the session of the General Assembly held early in 1850, an Act 
was passed submitting to the people of Maryland the ques- 
tion, whether or not a Convention should be called to revise the 
Constitution. The vote was taken at an election held in May 
of that year, and resulted in a majority in favor of a Conven- 
tion. The whole number of votes cast, however, was only about 
twenty thousand — the total number of voters in the State be- 
ing over sixty thousand. A Convention was thereupon assem- 
bled, on the first Monday in November, 1850, which, in a ses- 
1 M'Sherry's Hist. Md., pp. 348-353. 



CHARACTER OF THE LAST THREE CONVENTIONS. 215 

sion lasting until the 13th of May, 1851, adopted the Constitu- 
tion known as that of 1851. This Constitution was, in pursu- 
ance of one of its own provisions, submitted to a vote of the 
people on the 4th of June following, and being ratified by a 
majority of those voting, went into operation on the 4th of 
July, 1851. 

§ 225. Respecting the three Conventions of this class, I need 
only observe, that in respect of their origin, they were wholly 
illegitimate. The first — that of Pennsylvania — was not called 
in the mode provided by the Constitution, to which, whether 
wisely or unwisely, the people of the State had, by a solemn 
provision of that same instrument, specially restricted their 
agents and themselves. So also with that of Delaware. By its 
Constitution of 1776, no organic change could be made except 
upon the concurrence of two conditions : first, a favoring vote 
of five parts in seven of the Assembly ; and, second, a like vote 
of seven of the nine members of the Legislative Council. Nor 
could any such change be constitutionally made in Maryland ex- 
cept on the concurrence of three conditions : first, the passage, by 
the General Assembly, of an Act for that purpose ; second, the 
publication of the proposed amendment for the information of the 
people, for at least three months prior to a new election of that 
Assembly ; and, third, the confirmation of the Act by such new 
Assembly. Not one of the conditions mentioned was fulfilled 
in the case of either of those States. The legislatures, instead 
of proceeding to do what was desired, by their own direct action, 
as their respective Constitutions commanded, attempted to del- 
egate the work to Conventions called by themselves — a thing 
clearly prohibited by those instruments. It is obvious, that to 
justify such proceedings, on legal grounds, would be to take 
away from the fundamental law that characteristic quality by 
which it is the law of. laws — the supreme law of the land. If 
it be not the supreme law, for all the purposes of a Constitution, 
in the American sense, it might as well be a piece of blank 
paper. 

In this discussion I do not meddle with the question. Whether, 
in the cases indicated, the course taken to effect constitutional 
changes was necessary or not ? in other words. Whether the 
revolution consummated by the legislatures of those States was 
unavoidable, and so morally defensible ? It may be admitted, 



216 CONVENTIONS CALLED IN DEFIANCE OF THE GOVEENMENT. 

that the constitutional provisions I have quoted were injudi- 
cious ; that in communities like ours, rapidly increasing in 
wealth and population, they were certain, sooner or later, to lead 
to heart-burnings, if not to outbreaks of revolutionary violence. 
But this does not affect the legal question I am discussing, 
namely, Whether, tested by the principles of our constitutional 
system, the mode of securing the desired reforms did not involve 
a flagrant usurpation on the part of those legislatures? There 
is, in my judgment, no way in which the action of those bodies, 
in those cases, can be justified, except by affirming the legal 
right of the inhabitants of a given territory, organized as a body 
politic, to meet at will, as individuals, without the authority of 
law, and, on their own clainj that they are the people of the 
State, to dictate to the government such changes in its laws. 
Constitution, or policy, as they may deem desirable. This ques- 
tion I do not stop here to discuss, as it will be necessary for 
me to consider it fully hereafter, when I come to treat of the 
remaining class of Conventions, called irregularly, though for 
legitimate constitutional purposes, to which I now pass. 

§ 226. 2. The next variety of Constitutional Conventions, 
called irregularly, namely, those called in defiance of the exist- 
ing governments of the States concerned, though in pretended 
conformity to constitutional principles, embraces but a single 
Convention, — the so-called " People's Convention " of Rhode 
Island, held in 1841.1 

For nearly two centuries prior to the meeting of that Conven- 
tion, Rhode Island had governed herself under a Charter of King 
Charles II., of a character so democratic that, at the Revolution, 
it was deemed unnecessary to alter or abolish it. As the State 
advanced in wealth and population, however, some of the pro- 
visions of the Charter became very unsatisfactory to a large por- 
tion of the citizens, particularly that regulating the right of 
suffrage ; and naturally so ; for at the time the agitation com- 
menced, which resulted in the call of the People's Convention, 
the legislature of Rhode Island was elected by less than one 
half of the white male adult resident citizens of the State ; and 
so far was the body from representing the people proportion- 
ately, that the majority of the Assembly was elected by about 

1 Two Conventions were held in Rhode Island in 1841, one legitimate, before 
referred to (§ 219, note 1), and the other above described. 



people's convention of ehode island in 1841. 217 

one-third of the freemen.^ Rhode Island, moreover, originally 
agricultural, had undergone great changes, — many of its smaller 
towns becoming great manufacturing centres ; while what were 
once its chief cities had become much diminished in population. 
Thus Newport, formerly the principal town, had sunk to a pop- 
ulation of 8000, while Providence had risen to nearly 24,000 ; 
yet Newport continued to be represented by six, and Providence 
by four, representatives, which was also the number sent by 
Portsmouth, whose population was but 1700.^ 

To change this system, efforts had been made from time to 
time for many years. In 1824, a Convention was called by the 
legislature, and a Constitution framed and submitted to the peo- 
ple, but was rejected by them. Ten years later another Conven- 
tion was called, but broke up without completing its task. In 
January, 1841, the legislature called a third Convention, which 
met in November following ; but, adjourning for the express pur- 
pose, as was declared, of obtaining the opinion of their constit- 
uents on the expediency of extending the electoral franchise, 
assembled again in February, 1842, and framed a Constitution, 
which, being submitted to the people on the 21st, 22d, and 23d 
days of March, 1842, was rejected. Finally, in June, 1842, a 
fourth Convention was called by the legislature, which met in 
September, framed a Constitution, and submitted it to the peo- 
ple on the 21st, 22d, and 23d days of November, when it was 
ratified and put in operation.^ In the mean time, however, before 
this successful result had been reached, the popular impatience 
had vented itself in revolutionary proceedings, having for their 
object the formation of a new Constitution without the consent 
or privity of the existing government. These proceedings will 
be described in the following section. 

§ 227. The efforts of those citizens who desired an extension 
of the right of suffrage in Rhode Island, having failed, as it 
seems, through the unwise reluctance to diminish their own 
power, of those who were voters by existing laws, there were 
formed throughout the State, in 1840 and 1841, suffrage asso- 
ciations, the object of which was declared to be, "to diffuse 
information among the people, upon the question of forming a 
written republican Constitution." 

1 Democratic Rev. for 1842, Vol. 11. p. 70. 5* Ibid. 

3 Bartlett & Woodward's Hist U. S., Vol. III. pp. 609, 610. 



218 people's convention of ehode island in 1841. 

On the 5th of July, 1841, a mass Convention of the Mends 
of the suffrage movement met at Providence, at which were said 
to have been present six thousand free white male inhabitants 
of the State, of the age of twenty-one years and upwards. One 
of the results of the meeting was the appointment of a State 
committee with large powers in relation to the conduct of the 
reform agitation, and among them the power to call a Conven- 
tion at a future day. On the 20th of the same month, accord- 
ingly, the State committee issued a call, " by virtue of authority 
in them vested by the said mass Convention," notifying the 
inhabitants of the several towns and of the city of Providence, 
to assemble together, and appoint delegates to a Convention, for 
the purpose of framing a Constitution for the State, and provid- 
ing, that every American male citizen, twenty-one years of age 
and upwards, who had resided in the State as his home, one 
year preceding the election of delegates, should have a right to 
vote for delegates to said Convention, to draft a Constitution 
to be laid before the people of said State ; and that every thou- 
sand inhabitants in the towns in said Staie should be entitled 
to one delegate, and each ward in the city of Providence, to 
three delegates.^ 

In pursuance of this notification, certain of the citizens of 
Rhode Island, having the prescribed qualifications, in August, 
1841, elected delegates to a Convention, which met in Provi- 
dence, in October of the same year, and drafted a Constitution, 
extending the right of suffrage to every white male adult citizen 
of the United States, who had resided one year in the State, 
and apportioning the representatives among the towns and cities 
of the State as nearly as possible in proportion to their actual 
population. Publishing the draft, the Convention adjourned to 
meet again in the month of November, 1841. On the 18th of 
November, the delegates again met and completed the draft. 
They then submitted their so-called Constitution to be voted 
upon by the people of Rhode Island ; the voters to be American 
citizens, twenty-one years of age, and having their permanent 
residence or home in the State, but without any limitation of 
sex, color, place of nativity, or any fixed period of residence 
whatever. The voters were required to say whether they were 
qualified by the existing laws or not. The vote was to be taken 
1 Luther v. Borden, 7 How. (U. S.) R. 1. 



people's convention op RHODE ISLAND IN 1841. 219 

on the 27th, 28th, and 29th days of December, 1841, in open 
meetings, and by an order of the Convention ; every person who 
" from sickness or other cause," did not vote on those three days, 
was authorized to send his vote in to the moderator, within 
three days thereafter.^ 

§ 228. The Constitution thus framed, was submitted to the 
people, as thus determined, and received, as the returns showed, 
13,944 votes in its favor — a clear majority of the whole num- 
ber of adult male resident citizens, of whom there were in the 
State 23,000. Of the 13,944 votes cast for the Constitution, 
4960 were given, it was claimed, by persons having a right to 
vote under the Charter and acts of the General Assembly, being 
a majority of all the voters qualified to vote by the existing laws, 
of whom there were in all only about 9000.^ 

The Constitution having been thus submitted, and, as was 
claimed, adopted, on the 12th of January, 1842, at an adjourned 
session of the Convention, there were passed the following pre- 
amble and resolution : — 

" Whereas, by the return of the votes upon the Constitution, 
proposed to the citizens of this State by this Convention, the 
18th day of November last, it satisfactorily appears, that the 
citizens of this State, in their original sovereign capacity, have 
ratified and adopted said Constitution, by a large majority ; and 
the will of the people, thus decisively made known, ought to be 
implicitly obeyed and faithfully executed ; 

" We do therefore resolve and declare, that said Constitution 
rightfully ought to be, and is, the paramount law and Constitu- 
tion of the State of Rhode Island and Providence Plantations ; 
and we further resolve and declare, for ourselves and in behalf 
of the people whom we represent, that we will establish said 
Constitution, and sustain and defend the same by all necessary 
means. 

" Resolved, That the officers of this Convention make procla- 
mation of the return of the votes upon the Constitution, and that 

1 Considerations on the Questions of the Adoption of a Constitution and Exten- 
sion of Suffrage in Rhode Island. By Elisha R. Potter, p. 19. 

2 Democratic Rev. for 1842, Vol. II. p. 71. On the otlier hand, it has been 
denied, apparently upon good grounds, that the people's Constitution received 
a majority of the votes either of all the American citizens in the State, over 
twenty-one years of age, or of the legally qualified freemen. See Considera- 
tions, ifc, by Elisha R. Potter, Appendix, No. 4, p. 57. 



220 JUDICIAL DECISIONS RELATING TO 

the same has been adopted and become the Constitution of this 
State ; and that they cause said proclamation to be published 
in the newspapers of the same." ^ 

The Constitution was proclaimed, as ordered by the Conven- 
tion, an election of officers under it was held, at which Thomas 
W. Dorr was elected Governor, and a legislature was chosen, 
which met on the 3d of May, 1842, and having taken the proper 
initiatory steps to organize the new government, adjourned, leav- 
ing to the executive the responsibility of sustaining it against 
the attacks of the old government. This, the pretended Gov- 
ernor, Dorr, attempted to do. Two separate efforts were made 
to inaugurate by force the new government, — the first in May, 
1842, and the last one on the 29th of June, 1842. The old gov- 
ernment, however, prevailed ; Dorr was driven into exile, but 
finally returning, was tried for treason, convicted, and sentenced 
to imprisonment for life. 

§ 229. In several legal trials growing out of the movement 
just described, the question of the legitimacy of the " People's 
Constitution," w^as brought directly under discussion, both in 
the State and Federal courts. 

The old government of Rhode Island caused prosecutions to 
be instituted in the courts of the State against some of the per- 
sons concerned in the forcible measures above indicated. In 
defending these actions, the parties prosecuted offered evidence 
of the proceedings, resulting in the formation of the new Con- 
stitution, and requested the courts to charge the jury, that "the 
proposed Constitution had been adopted by the people of Rhode 
Island, and had, therefore, become the established government ; 
and, consequently, that the parties accused were doing nothing 
more than their duty in endeavoring to support it." 

The State courts, however, uniformly held, that " the inquiry," 
as to the legitimacy of the new Constitution, "belonged to the 
political power of the State, and not to the judicial ; that it 
rested with the political power to decide whether the Charter 
government had been displaced or not ; and when that decision 
was made, the judicial department would be bound to take no- 
tice of it as the paramount law of the State, without the aid of 
oral evidence or the examination of witnesses ; that, according 
to the laws and institutions of Rhode Island, no such change 
1 Luther V. Borden, 7 How. (U. S.) R. 1. 



THE people's convention OP RHODE ISLAND. 221 

had been recognized by the political power ; and that the Charter 
government was the lawful and established government of the 
State during the period in contest, and that those who were in 
arms against it were insurgents, and liable to punishment." 

The same question was afterwards passed upon by the Su- 
preme Court of the United States, in the case of Luther v. 
Borden, carried up by writ of error from the Circuit Court of 
Rhode Island. The facts of the case were briefly these : — 
The Charter government of that State had declared martial law, 
and raised a military force to protect itself against the attempts 
of the suffrage party to subvert it. On the 29th of June, 1842, 
at the time the second attempt was made by Dorr to inaugurate 
his pretended new government by military force, Luther M. 
Borden and others, composing a part of a regiment of militia, 
raised and acting under the authority of the Charter govern- 
ment, in obedience to orders from their commanding officers, 
broke and entered the dwelling-house of Martin Luther, an ad- 
herent of Dorr, for the purpose of arresting him as aiding and 
abetting the insurrection. Luther thereupon brought an action 
of trespass, quare clausum fregit, against Borden and his asso- 
ciates, in the Circuit Court of the United States for the Dis- 
trict of Rhode Island, to try the question of the relative validity 
of the two governments. The defendants justified their entry 
by setting up the Charter of the colony, the establishment of the 
Union between Rhode Island, under the Charter, and the other 
States composing the United States, and the acts of the general 
government and of the several States, recognizing the State of 
Rhode Island as a member of the Union, under its said Charter. 
They showed further the assembling together of the suffrage 
party for the purpose of overthrowing the established govern- 
ment of the State, the declaration of martial law, and the or- 
ganization of the military force under the Charter government, 
of which they constituted a part, and claimed that, in breaking 
and entering the dwelling-house of the plaintiff, they were acting 
under orders from the existing government, rightfully and law- 
fully issued. 

§ 230. To this the plaintiff replied, exhibiting in detail the 
proceedings above described, resulting in the proclamation by 
the suffrage party of a new Constitution, and in the forcible 
attempts of Dorr to establish it. After offering evidence to 



222 JUDICIAL DECISIONS RELATING TO 

prove the case on his part, as stated, the plaintiff requested the 
judge (the Hon. Joseph Story) to charge the jury, " that under 
the facts offered in evidence by the plaintiff, the Constitution 
and frame of government prepared, adopted and established in 
the manner and form set forth and shown, thereby was and 
became the supreme law of the State of Rhode Island, and was 
in full force and effect, as such, during the time set forth in the 
plaintiff's declaration, when the trespass alleged therein was 
committed by the defendants, as admitted by their pleas ; that 
a majority of the free white male citizens of Khode Island, of 
twenty-one years and upwards, in the exercise of the sovereignty 
of the people through the forms and in the manner set forth in 
the evidence offered by the plaintiff, and in the absence, under 
the then existing frame of government of the said State of 
Rhode Island, of any provision therein for amending, changing, 
or abolishing the said frame of government, had the right to 
reassume the powers of government, and establish a written 
Constitution and frame of a republican form of government; 
and that having so exercised such right, as aforesaid, the preex- 
isting Charter government, and the authority and assumed laws, 
under which the defendants in their plea claimed to have acted, 
became null and void and of no effect, so far as they were re- 
pugnant to and conflicted with said Constitution, and are no 
justification of the acts of the defendants in the premises." ^ 

The court rejected the testimony offered, and refused to give 
the instructions asked by the plaintiff; but, on the contrary, 
instructed the jury, that the Charter government and laws, under 
which the defendants acted, were, at the time the trespass was 
alleged to have been committed, in full force and effect, as the 
form of government and permanent law of the State, and con- 
stituted a justification of the acts of the defendants, as set forth 
in their pleas.^ 

To this decision of the court exceptions were taken, and the 
case was carried by writ of error to the Supreme Court of the 
United States. 

Before giving the decision of the latter upon the case, it 
should be noted, that, at the time the people's party assailed 
the Charter government with military force, the executive of 

1 Luther v. Borden, 7 How. (U. S.) E. 1. 

2 Id. p. 88. 



THE people's convention OP RHODE ISLAND. 223 

the latter government made application to the President of the 
United States for aid in maintaining the same, under the fourth 
section of the fourth article of the Constitution, guaranteeing to 
each State of the Union, on the application of its legislature, 
or, when the legislature could not be convened, on that of its 
executive, protection " against domestic violence ; " and the 
President promised the necessary support, and took measures 
to call out the militia to sustain the Charter government. 

§ 231. Upon these facts, the Supreme Court, Chief Justice 
Taney, delivering the opinion, held — 

First. That the question involved in the case related alto- 
gether to the Constitution and laws of one of the States of the 
Union, and that it was the well-settled rule in the courts of the 
United States, that the latter adopt and follow the decisions of 
the State courts in questions which concern merely the Constitu- 
tion and laws of such States ; that the courts of the United 
States have undoubtedly certain powers under the Constitution 
and laws of the United States, which do not belong to the 
State courts, but that the power of determining that a State 
government has been lawfully established, which the courts of 
the State disown and repudiate, is not one of them ; that, upon 
such a question, the courts of the United States are bound to 
follow the decisions of the State tribunals, and that, inasmuch 
as the courts of Rhode Island had affirmed the validity of the 
Charter government, and the invalidity of the pretended new 
one seeking to supplant it, the courts of the United States must, 
therefore, regard the Charter government as the lawful and estab- 
lished government " during the time of this contest." ^ 

Secondly. That the fourth section of the fourth article of the 
Constitution of the United States provides, that the United 
States shall guarantee to every State in the Union a republican 
form of government, and shall protect each of them against in- 
vasion ; and, on the application of the legislature, or of the exec- 
utive (when the legislature cannot be convened), against do- 
mestic violence ; that, under this article of the Constitution, it 
rests with Congress to decide what government is the estab- 
lished one in a State ; for, as the United States guarantee to 
each State a republican government, Congress must necessarily 
decide what government is established in the State before it can 
1 Luther v. Borden, 7 How. (U. S.) R. 40. 



224 people's contention considered upon principle. 

determine whether it is republican or not; and when the sena- 
tors and representatives of a State are admitted into the coun- 
cils of the Union, the authority of the government under which 
they are appointed, as well as its republican character, is recog- 
nized by the proper constitutional authority, and its decision is 
binding on every other department of the government, and 
could not be questioned in a judicial tribunal. So, too, as re- 
lates to the clause of the Constitution providing for cases of 
domestic violence, it rested with Congress to determine upon 
the means proper to be adopted to fulfil this guarantee. They 
might, if they had deemed it most advisable to do so, have 
placed it in the power of a court to decide when the contingency 
had happened which required the Federal government to inter- 
fere. But Congress thought otherwise ; and by the Act of Feb. 
28, 1795, provided, that " in case of an insurrection in any State 
against the government thereof, it shall be lawful for the Presi- 
dent of the United States, on application of the legislature of 
such State, or of the executive (when the legislature cannot be 
convened), to call forth such number of the militia of any other 
State or States as maybe applied for, as he may judge sufficient 
to suppress such insurrection ; " that this power, conferred upon 
the President by the Constitution and laws of the United States, 
belonged to him exclusively ; that the President had acted in 
the case of Rhode Island, not, it was true, by actually calling 
out the militia, on the application of the Governor of Rhode 
Island, under the Charter government, but by recognizing him as 
the executive of the State, and by taking measures to call out 
the militia to support his authority, if it should be found neces- 
sary for the general government to interfere ; that this interfer- 
ence of the President by announcing his determination, was as 
efficient as if the militia had been assembled under his orders; 
that it ought to be equally authoritative ; and that no court of 
the United States would, knowing this decision, be justified in 
recognizing the opposing party as the lawful government.^ 

For these reasons, the judgment of the circuit court, acquit- 
ting the defendants, was affirmed. 

§ 232. It is perhaps unfortunate that the question involved in 
this case could not have been decided by the Supreme Court of 
the United States, directly upon principle. As in the case 
1 Luther v. Borden, 7 How. (U. S.) E. 44. 



ARGUMENT OF MR. HALLETT IN THE SUPREME COURT. 225 

which went up from Michigan, involving the legitimacy of the 
State government organized in the territory of that name in 1835,i 
so, in that of Luther v. Borden, the question discussed was 
treated in the Supreme Court as one simply of jurisdiction, the 
court abstaining from expressing any opinion on the points most 
interesting to us in this discussion. Upon the merits of the con- 
troversy, therefore, judicial authority is wholly wanting, save as 
it is derived from the adjudications of the courts of the State, 
which obviously cannot be considered as conclusive. To deter- 
mine, then, the question as to the right of the citizens of a State 
to alter or abolish their political Constitution, without the con- 
sent of the existing government, we are compelled to recur to 
fundamental principles. For such a discussion we are happily 
not without abundant materials. In the argument of Luther v. 
Borden in the Supreme Court, Mr. Webster and Mr. Hallett, 
counsel respectively for the Charter government of Rhode Island, 
and for the plaintiffs in error, representing the Dorr government, 
met the case fairly and squarely, expounding with very great 
ability the principles involved, upon which alone they sought to 
rest the cause of their clients. Perhaps I could not better ex- 
hibit the true doctrine on the question than by transcribing, 
within reasonable limits, and contrasting the arguments of those 
gentlemen, who, to eminent ability and learning as lawyers, 
added a special fitness for this discussion, as being leading mem- 
bers of the two great political parties of the time, which had 
ranged themselves, in the main, upon opposite sides in the 
Rhode Island controversy. 

§ 233. In behalf of the plaintiff in error, Martin Luther, Mr. 
Hallett urged : — That the fundamental principle of the Amer- 
ican system of government is, that government is instituted by 
the people, and for the benefit, protection, and security of the 
people, nation, or community ; and that when any government 
shall be found inadequate or contrary to these purposes, a major- 
ity of the community has an indubitable, inalienable, and inde- 
feasible right to alter or abolish the same, in such manner as 
shall be judged most conducive to the public weal ; that the 
terms " community," " society," " state," " nation," " body of the 
community," " great body of the people," are used by early polit- 
ical writers as synonymous with the word " people ; " and that 

1 Ante, §§ 207, 208. 
15 



226 AEGUMENT OP MR. HALLETT IN THE SUPREME COURT. 

all the American writers use the term " people " to express the 
entire numerical aggregate of the community, whether state or 
national, in contradistinction to the government or legislature ; 
that in the people, as thus defined, resides the ultimate power of 
sovereignty ; that it is the people, or sovereign, that has the sole 
right to establish government, and, when deemed necessary, to 
alter or abolish it; and that according as well to the teachings of 
the best political writers as to the positive affirmations of many 
of our Constitutions, the people may meet when and where they 
please, and dispose of the sovereignty, or limit the exercise of 
it ; that the doctrine that legislative action or sanction is neces- 
sary, as the mode of effecting a change of State government, is 
anti-republican and novel, having been broached for the first 
time under the United States government, in the debate in 
Congress upon the admission of Michigan, December, 1836 ; 
that, in the United States, no definite uniform mode has ever 
been established for either instituting or changing a form of 
State government ; that the State legislatures have no power or 
authority over the subject, and can interfere only by usurpation, 
any further than like other individuals, to recommend ; that the 
great body of the people may change their form of government 
at any time, in any peaceful way, and by any mode of opera- 
tions that they for themselves determine to be expedient ; that, 
even where a subsisting Constitution points out a particular 
mode of change, the people are not bound to follow the mode 
pointed out, but may, at their pleasure, adopt another; that, 
where no Constitution exists, and no fundamental law prescribes 
any mode of amendment, then they must adopt a mode for 
themselves ; and the mode they do adopt, when ratified or ac- 
quiesced in by a majority of the people, is binding upon all ; that 
it is a well-settled rule in the United States, that a State Con- 
stitution, being the deliberate expression of the sovereign will of 
the people, takes effect from the time that will is unequivocally 
expressed in the manner provided in and by the Constitution 
itself; that is, from the time of its ratification by the vote of the 
people, which, in the language of Washington, is of itself " an 
explicit and authentic act of the whole people ; " that this right 
of the people to change, alter, or abolish their government, in 
such manner as they please, is a right not of force but of sov- 
ereignty ; that whatever may be the case with the Federal gov- 



AEGUMENT OF MR. WEBSTER IN THE SUPREME COURT. 227 

ernment, no right of revolution, in the common and European 
sense of the term, implying a change by force, is anywhere 
sanctioned, so far as the individual States are concerned, in the 
Constitution of the United States ; that a revolution by force, 
inasmuch as it includes insurrection and rebellion, which con- 
stitute " domestic violence," against which, by the Federal Con- 
stitution, Congress is bound to guarantee the States, can never 
be resorted to within the limits of that Constitution, while a 
State remains in the Union ; that, therefore, when our best writ- 
ers and our Constitutions affirm the existence of the right above 
asserted in the people, they affirm a right to be exercised, not 
by force, but by peaceful and constitutional methods ; that, as a 
consequence of these principles of government and sovereignty, 
acknowledged and acted upon in the United States and the 
several States thereof, at least ever since the Declaration of 
Independence, the Constitution and frame of government, pre- 
pared, adopted, and established by the " People's Convention " 
in Rhode Island, as above set forth, was and became thereby the 
supreme fundamental law of the State of Rhode Island, and was 
in full force and effect as such, when the trespass 'alleged in the 
plaintiff's writ was committed by the defendants.^ 

§ 234. The argument of Mr. Webster in reply to this most 
ingenious defence of anarchical principles, consisted mainly in a 
masterly statement of the principles of the American system of 
government. It was in substance as follows: — 

That without going into historical details, the principles on 
which the American system rests, are, first and chief, that the 
people are the source of all political power, government being 
instituted for their good, and its members, their servants and 
agents ; and, secondly, that, as the exercise of legislative power 
and the other powers of government immediately by the people 
themselves, is impracticable, they must be exercised by represent- 
atives of the people ; that the basis of representation is suffrage ; 
that the right to choose representatives is every man's part in the 
exercise of sovereign power ; to have a voice in it, if he has the 
proper qualifications, is the portion of political power belonging 
to every elector ; that that is the beginning, the mode in which 
power emanates from its source and gets into the hands of 
Conventions, legislatures, courts of law, and the chair of the ex- 
1 Luther v. Borden, 7 How. (U. S.) R. 19-27. 



228 AEGUMENT OF ME. WEBSTEE IN THE SUPREME COURT. 

ecutive ; that it begins in suffrage — suffrage being the delega- 
tion of power of an individual to some agent ; that, this being 
so, there follow two other great principles of the American sys- 
tem : first, that the right of suffrage shall be guarded, protected, 
and secured against force and fraud ; and, secondly, that its ex- 
ercise shall be prescribed by previous law; that is, that its quali- 
fications, and the time, place and manner of its exercise, under 
whose supervision (always sworn officers of the law) are to be 
prescribed by previous law ; and that its results are to be certi- 
fied to the central power by some certain rule, by some known 
public officers, in some clear and definite form, to the end that 
two things may be done — first, that every man entitled to vote 
may vote, and, second, that his vote may be sent forward and 
counted, and so he may exercise his part of sovereignty, in 
common with his fellow-citizens ; that not only do the people 
limit their governments, National and State — it is another prin- 
ciple, equally true and important that they often limit them- 
selves ; that they set bounds to their own power ; securing the 
institutions w^hich they establish against the sudden impulses of 
mere majorities ; thus, by the 5th Article of the Constitution, 
Congress, two-thirds of both Houses concurring, may propose 
amendments of the Constitution, or on the application of the 
legislatures of two-thirds of the States, may call a Convention — - 
the amendments proposed, in either case, to be ratified by the 
legislatures or Conventions of three-fourths of the States ; that 
they also limit themselves in regard to the qualifications of 
electors, and in regard to the qualifications of the elected ; they 
also limit themselves to certain prescribed forms for the conduct 
of elections, — it being required, that they shall vote at a particu- 
lar place, at a particular time, and under particular conditions, 
or not at all ; that it is in these modes we are to ascertain the 
will of the American people, and that our Constitutions and laws 
know no other mode ; that we are not to take the will of the 
people from public meetings, nor from tumultuous assemblies, 
by which the timid are terrified, the prudent alarmed, and society 
disturbed ; and that, if any thing in the country, not ascertained 
by a regular vote, by regular returns, and by regular representa- 
tion, has been established, it is an exception and not the rule. 

§ 235. Referring to the same principles, he continued : That it 
is true, at the Revolution, when all government was dissolved, 



ARGUMENT OF MR. WEBSTER IN THE SUPREME COURT. 229 

the people got together and began an inceptive organization, the 
object of which was to bring together representatives of the peo- 
ple who should form a government ; that this was the mode of 
proceeding in those States where their legislatures were dissolved ; 
that it was much like that had in England upon the abdication 
of King James 11. ; he ran away, he abdicated, and King Wil- 
liam took the government, and how did he proceed? He at 
once requested all who had been members of the old Parliament, 
of any regular Parliament, in the time of Charles IL, to assem- 
ble ; the Peers, being a standing body, could, of course, assem- 
ble ; and all they did was to recommend the calling of a Conven- 
tion, to be chosen by the same electors, and composed of the 
same numbers as composed a Parliament; the Convention assem- 
bled, and, as all know, was turned into a Parliament ; that this 
was a case of necessity, a revolution, so-called, not because a 
new sovereign then ascended the throne of the Stuarts, but 
because there was a change in the organization of the govern- 
ment ; that the legal and established succession was broken ; 
the Convention did not assemble under any preceding law; there 
was a hiatus, a syncope, in the action of the body politic ; this 
was a revolution, and the Parliaments that assembled afterwards 
referred their legal origin to that revolution. 

Is it not obvious enough, he asked, that men cannot get to- 
gether and count themselves, and say there are so many hun- 
dreds, and so many thousands, and judge of their own qualifica- 
tions, and call themselves the people, and set up a government ? 
Why, said he, another set of men, forty miles off, on the same 
day, and in as large numbers, may meet and set up another 
government, and both may call themselves the people. What 
is this but anarchy ? 

Another American principle growing out of this, said Mr. 
Webster, and just as important and well settled as is the truth, 
that the people are the source of power is, that when, in the 
course of events, it becomes necessary to ascertain the will of 
the people on a new exigency, or a new state of things or of 
opinion, the legislative power provides for that ascertainment by 
an ordinary act of legislation. Has not that been our whole 
history? The old Congress, upon the suggestion of the del- 
egates who assembled at Annapolis, in May, 1786, recommended 
to the States that they should send delegates to a Convention 



280 ARGUMENT OF MR. WEBSTER IN THE SUPREME COURT. 

to be holden at Philadelphia, to form a Constitution. No article 
of the old Confederation gave them power to do this, but they 
did it, and the States did appoint delegates, who assembled at 
Philadelphia, and formed the Constitution. It was communi- 
cated to the old Congress, and that body recommended to the 
States to make provision for calling the people together to act 
upon its adoption. Was not that exactly the case of passing a 
law to ascertain the will of the people in a new exigency ? And 
this method was adopted without opposition, nobody suggesting 
that there could be any other mode of ascertaining the will of 
the people. The counsel for the plaintiff in error went through 
the Constitutions of several of the States. It is enough to say, 
in reply, that of the old thirteen States, the Constitutions, with 
but one exception, contained no provision for their own amend- 
ment. In New Hampshire, there was a provision for taking the 
sense of the people once in seven years. (Yet there is hardly 
one that has not altered its Constitution, and it has been done 
by Conventions called by the legislative power. Now, what 
State ever altered its Constitution in any other mode? )What 
alteration has ever been brought in, put in, forced in, or got in 
any how, by resolutions of mass-meetings, and then by applying 
force? In what State has an assembly, calling itself the people, 
convened without law, without authority, without qualifications, 
without certain officers, with no oaths, securities, or sanctions 
of any kind, met and made a Constitution, and called it the 
Constitution of the State ? There must be some authentic 
mode of ascertaining the will of the people, else all is anarchy. 
It resolves itself into the law of the strongest, or, what is the 
same thing, of the most numerous for the moment, and all Con- 
stitutions and all legislative rights are prostrated and disre- 
garded. 

To these arguments he added another, founded on the pro- 
vision of the Federal Constitution (Article 4, section 4), similar 
in its terms to that contained in the opinion of the Supreme 
Court, already referred to, showing that the Charter government 
of Rhode Island was the only one that could be recognized by 
the court or by the government of the United States, which, by 
its own Constitution, was pledged to protect and maintain it. 

§ 236. It seems presumptuous to attempt to add any thing to 
an argument so solid and conclusive as that of Mr. Webster, 



OBSERVATIONS UPON MR. HALLETT'S ARGUMENT. 231 

but I cannot forbear from remarking upon two or three points 
made by Mr. Hallett. 

1. Combating " the doctrine that legislative action or sanction 
is necessary, as the mode of effecting a change of State govern- 
ment," as " anti-republican and novel," Mr. Hallett asserted, 
that, " in the United States, no definite uniform mode has ever 
been established for either instituting or chang-ing- a form of State 
government.''^ This is ti*ue, if, by the establishment of a definite 
uniform mode, be meant the prescribing of such a mode by a 
provision of either the Federal or State Constitutions, so as to 
be binding upon the States. But it is not essential to the estab- 
lishment of such a mode, that it should be done by constitu- 
tional provision. iThe common practice of all the States, as well 
as of the United States, rarely departed from even amidst the 
distractions of the Revolution, according to which the calling 
of Conventions for the purpose of " either instituting or changing 
a form of government," is left to the proper legislative authority 
in each case, is itself a part of the common law of the land, 
from which, except in cases of necessity, to be judged of only 
by the same legislative authority, no departure ought to be tol- 
erated. Such a mode is not only established, but it is as definite 
and uniform as any mode can be, consistently with safety. ) 

§ 237. 2. The capital point in Mr. Hallett's argument, how- 
ever, was, that it is a right of the people to change, alter, or abol- 
ish their government, in such manner as they please," and that this 
right ^Hs a right, not of force, but of sovereignty" 

Now, if in this extract, by the word " people," be meant the 
nation, considered as a political unit, I observe that, conceding 
the right claimed for it to exist, the exercise of that right would 
be wholly impracticable. The people, in that sense, never did, 
and never could act directly ; it could act only by a delegation 
of its authority, as, to the legislature, to the electors, and the 
like, — the terms and conditions of that delegation being pre- 
scribed in the Constitution. The right of the people then, in 
this sense of the term, if it exist, is a right that never has been, 
and never can be exercised ; that is, is, practically, not a right 
at all. 

But, were there no such inherent impracticability ; if the en- 
tire population of a State could, as it is often expressed, *' meet 
upon some vast plain," so long as that population was organized 



232 OBSERVATIONS UPON MR. HALLETT's ARGUMENT. 

under a Constitution, like those with which we are familiar, 
though it would be physically able to carry into execution such 
ordinances as should get themselves passed at its tumultuous 
parliament, it clearly would have no constitutional or legal right 
to pass an ordinance at all. Such an assemblage would not 
constitute, in a political sense. The People. The people of a 
State is the political body — the corporate unit — in which are 
vested, as we have seen, the ultimate powers of sovereignty ; 
not its inhabitants or population, considered as individuals. It 
is never to be forgotten, that the individuals, constituting a State, 
have, as such, no political, but only civil, rights. Except as an 
organized body, that is, except when acting by its recognized 
organs, the entire population of a State already constituted, 
were it assembled on some vast plain, could not constitutionally 
pass a law or try an offender. 

§ 238. If, on the other hand, by the term " people," be meant 
that part of the population of a State, in whom is vested, by 
the Constitution, the exercise of sovereign rights, the electors, 
the doctrine, that they have " the right to change, alter, or abol- 
ish their government, in such manner as they please^'' is absurd 
and ridiculous — I mean, as a legal or constitutional right, or, 
as Mr. Hallett says, as a " right, not of force, but of sovereignty." 
They have a right, unquestionably, " to change, alter, or abolish 
their government," in the mode provided in the charter deter- 
mining their powers, the Constitution, or, when that is silent, 
in such a mode as shall be conformable to the customary law 
of the land, and to the general principles of a republican repre- 
sentative system. By both these, as well as by the express pro- 
visions of such Constitutions as are not silent on the subject, 
movements of the people, with a view " to change, alter, or 
abolish their government," are never initiated but by the legis- 
lative authority of the State. Why this should be so, is shown 
by Mr. Webster in that part of his argument in which are ex- 
hibited the practical requisites to the authenticity of a vote.^ 
If there is anywhere, in our political system, then, a power to 
change, alter, or abolish the existing government, as a legal 
right, it must reside in some branch of that government, by vir- 
tue of authority given in the Constitution ; or, where there is no 
express authority given, in some body called for that purpose 
by the rightful law-making power of the State. 

1 § 234, ante. 



OBSERVATIONS UPON MR. HALLETT'S ARGUMENT. 233 

§ 239. Again : The argument of Mr. Hallett in support of the 
proposition, that the right of the people to change, alter, or abol- 
ish their government, in such manner and at such time as they 
may please, is a right, not of force, but of sovereignty, consists 
of two branches — a negative branch, and an affirmative branch. 

The negative branch of the argument is, that the right cannot 
be a mere right of force or of revolution, because the Consti- 
tution of the United States nowhere recognizes the right of 
revolution, in the common and European sense of the term, so 
far as the States are concerned ; but that, inasmuch as revolu- 
tion by force involves insurrection and rebellion, which consti- 
tute " domestic violence," against which Congress is bound by 
that Constitution to guarantee the States, it can never be resorted 
to within the limits of the Constitution, while a State remains 
in the Union. 

The facts stated are perfectly true, but the inference drawn 
from them is unwarranted. Revolution can never be resorted 
to under the Federal Constitution, or under any other Constitu- 
tion, legally; but, when the evils under which a commonwealth 
languishes, become so great as to make revolution, including 
insurrection and rebellion, less intolerable than an endurance of 
those evils, it will be justifiable, although the Federal relations of 
that commonwealth may be such as to array against her forces 
vastly greater than they would be were she and the other States 
independent and isolated communities. The right of revolution 
stands not upon the letter of any law, but upon the necessity 
of self-preservation, and is just as perfect in the single man, or 
in the petty State, as in the most numerous and powerful em- 
pire in the world. This right, the founders of our system were 
careful to preserve, not as a right under, but, when necessity 
demanded its exercise, over our Constitutions, State and Federal. 

§ 240. The affirmative branch of the argument is, that the right 
asserted must be a right of sovereignty and not of force, because 
it is specifically guaranteed in the Declaration of Independence 
and in the Bills of Rights of nearly all our State Constitutions. 

To determine whether this inference from facts which cannot 
be denied is just or not, it is necessary to examine critically the 
documents indicated, as well as the historical circumstances 
attending their inception. 

Now these documents are of three kinds. The first kind con- 



234 OBSEEVATIONS UPON ME. HALLETT'S ARGUMENT. 

sists of such as assert the right clearly and unmistakably as a 
right of revolution. 

Thus, the Declaration of Independence affirms, " that when- 
ever any form of government becomes destructive " of the ends 
of government, " it is the right of the people to alter or abolish 
it, and to institute a new government, laying its foundation on 
such principles, and organizing its powers in such form as to 
them shall seem most likely to effect their safety and happiness." 

Not only so, but it classes this affirmation among the self- 
evident truths : " We hold these truths to be self-evident." 

Now, no truth can be self-evident, which becomes evident 
only under particular conditions, as when it is deducible only 
from the construction of legal instruments, or from the provisions 
of some positive code. It must be a truth independently of such 
conditions, as would be indispensable to give it rank as a legal 
truth. If the truth in question is a self-evident truth, it is one 
which would obtain equally whether asserted in the Constitution 
and laws or not. 

Now, that a people, organized under a Constitution, which 
itself provides a particular mode for its own amendment, have a 
legal right to alter or abolish it whenever and however they 
please, is not a self-evident truth, and could never have been 
claimed to be such by any body of sane men. 

Moreover, the circumstances, under which the Declaration of 
Independence was promulgated, and the clear import of its terms, 
indicate, that it was the right of revolution to which its authors 
referred. That instrument was the manifesto by which they 
declared that to be a revolution, which hitherto had been but a 
mere insurrection. Its language was that of justification for 
acts tending to the permanent disruption of the empire. " Pru- 
dence, indeed, will dictate," its authors say, " that governments 
long established should not be changed for light and transient 
causes ; and accordingly all experience hath shown, that man- 
kind are more disposed to suffer, while evils are sufTerable, than 
to right themselves, by abolishing the forms to which they are 
accustomed. But when a long train of abuses and usurpations, 
pursuing invariably the same object, evinces a design to reduce 
them under an absolute despotism, it is their right, it is their 
duty, to throw off such government, and to provide new guards for 
their future security.^'' 



OBSERVATIONS UPON MR. HALLETT's ARGUMENT. 235 

Here, certainly, our fathers were not claiming, as guaranteed 
or existing by the laws of England, a right to disrupt the British 
empire, but a right older than thot^e laws, the right of revolution. 

§ 241. The second class of documents consists of the Bills of 
Rights of a large number of our Constitutions, containing broad 
general assertions of the right of a people to alter or abolish 
their form of government, at any time, and in such manner as they 
may deem expedient. The peculiarity of these documents is, 
that they seem to assert the right in question as a legal right ; 
at least, they furnish a plausible argument for those who are 
willing to have it believed that the right is a legal one ; when, in 
fact, it is a revolutionary right. The framers of those Constitu- 
tions generally inserted in them provisions for their own amend- 
ment. Had nothing further been said, it might have been in- 
ferred, that no other mode of securing needed changes was under 
any circumstances to be pursued, but that prescribed in those 
instruments. Such, however, was not the intention of their 
framers. They meant to leave to the people, besides, the great 
right of revolution, formally and solemnly asserted in the Dec- 
laration of Independence. They, therefore, affirmed it to be a 
right of the people to alter or abolish their Constitutions, in any 
manner whatever ; that is, first, legally, in the mode pointed out 
in their Constitutions, or by the customary law of the land ; and 
secondly, illegally, that is, for sufficient causes, by revolutionary 
force. 

Thus, the Bill of Rights of Mississippi contains a provision, 
which is a type of that found in a great number of our State 
Constitutions, couched in the following terms : " We declare, 
.... that all power is inherent in the people, and all govern- 
ments are founded on their authority, and instituted for their 
safety, peace and happiness. For the advancement of these ends, 
they have, at all times, an unalienable and indefeasible right to 
alter, reform, or abolish their government, in such manner as they 
may think proper." ^ 

1 Substantially the same is the declaration found in each of the following 
Constitutions: — Those of Massachusetts, 1780; Vermont, 1786; Connecticut, 
1818; Maine and Alabama, 1819; Delawai-e, 1831; Mississippi, 1832; Ten- 
nessee, 1834; Arkansas, 1836; Pennsylvania, 1838; Florida, 1839; Kew Jer- 
sey, 1844; Texas, 1845; Missouri, 1846; California, 1849; Kentucky, 1850; 
Ohio, 1851 ; and Iowa, Oregon, and Minnesota, 1857. Where revisions have 
been made of these Constitutions, the provision is commonly inserted therein 
without modification. 



236 OBSERYATIONS UPON MR. HALLETT'S ARGUMENT. 

But, let it be noted, that these Constitutions do not say, that 
.every mode of exercising this right will be a legal mode. What 
they do declare is, in effect, this : The people cannot bind them- 
selves or be bound, irretrievably, to continue a form of govern- 
ment, when it has ceased to answer the ends of its establishment. 
They may change it or set it aside in any way whatever that 
circumstances may make necessary. They may do it by force 
even, and, of course, by the mild and regular procedure laid down 
in their Constitution — calling things always, however, by their 
right names ; when doing it in the latter mode, designating it as 
legal or constitutional, but when in the former, as revolutionary. 

§ 242. That the view I have taken of the two classes of docu- 
meats specified is the correct one, is rendered more probable 
when we look into the state of opinion in England and America, 
previous to our Revolution, in reference to the duties of a people 
towards their rulers, embodied, in conformity to the views of 
the latter, in the famous doctrine of "Passive Obedience" or 
" Non-Resistance." 

The substance of this doctrine was, that governments are of 
divine appointment, and hence that any resistance whatever to 
kingly authority (for it was to bolster up the institution of mon- 
archy that it was invented), even when that authority is ex- 
erting itself in palpable violation of the laws, is sinful in the 
sight of God. This doctrine, originating in the Middle Ages, 
was held by the Tory party in England during the entire exist- 
ence of the Stuart dynasty, their opponents, the Whigs, on the 
contrary, maintaining the essential principles of liberty, the inde- 
pendence of Parliament and of the people, and the lawfulness of 
resistance to a king who violated the laws. After the fall of the 
Stuarts, the doctrine was generally discredited, but in the alterna- 
tions of parties which ensued, it was frequently revived, mainly 
through the influence of the Church, which repaid the favors 
lavished upon her by the crown, by inculcating doctrines tending 
to make the latter absolute master of the public liberties. Dur- 
ing the long period of Whig ascendency, however, extending 
with few intermissions from the reign of William III. to that 
of George III., the slavish dogma of Passive Obedience became 
nearly extinct, being subjected to persecution by the party in 
power. In the reign of Queen Anne, Dr. Sacheverell was 
impeached for maintaining it in a sermon preached before the 



OBSERVATIONS UPON MR. HALLETT's ARGUMENT. 237 

Commons.! ^^ ^\^Q accession of George III., however, there 
came a great Tory reaction, and the doctrine of Non-Resist- 
ance was again preached by all of that numerous party which 
thought what was pleasing to the ruling monarch. At the time 
our Revolution broke out the minds of men everywhere through- 
out the British empire were oppressed by scruples, resting on 
the teachings of revered names in the Church, as to the sinful- 
ness of resistance to the usurpations of the King, even when he 
was evidently laying violent hands on the very temple of free- 
dom itself.2 

§ 243. Among the most difficult tasks of the men of our Rev- 
olution, therefore, was to disabuse the public mind of the heresy 
of Passive Obedience or Non-Resistance. The discussions pre- 
ceding the revolt are filled with arguments tending to make it 
clear to tender consciences in the colonies, that in entering upon 
a course of opposition to King and Parliament, they were not 
guilty necessarily of a sin or a crime.^ In this great work, natu- 
rally, the clergy of the period bore a conspicuous part. It was 
left to no particular class, however, to clear up a doubt, which 
strikes the mind in our day as absurd. It was preached down 
in the pulpits, argued against in the halls of legislation and upon 
the stump, and, to make sure that it should be deprived of all 
further power to mislead, it was nailed to the wall for public 
reprobation in the great manifesto of our Revolution, and in our 
Bills of Rights. 

When the fathers, therefore, in the Declaration of Indepen- 
dence, solemnly affirmed the right of a people to alter or abolish 
their government, whenever it should have become destructive 
of its proper ends, " laying its foundation on such principles, and 
organizing its powers in such form, as to them should seem 

1 In his answer to the Articles of Impeachment, the Doctor said : — " The said 
Henry Sacheverell, upon the strictest search into his said sermon preached at 
St. Paul's, doth not find that he hath given any the least colourable pretence for 
the accusation exhibited against him in this first article, but barely by his assert- 
ing the utter illegality of Resistance to the Supreme power upon any pretence 
whatsoever ; for which assertion, he humbly conceives he hath the authority of 
the Church of England." 15 How. St. Trials, p. 42. 

2 On the whole subject of Non-Resistance, see Macaulay, Hist. Eng., Vol. I. 
pp. 37, 38, 324-326; May, Const. Hist. Eng., Vol. I. pp. 15-104; Hallam, 
Const. Hist. Eng., pp. 237, 238, 491, 493. 

3 See Bancroft, Hist. U. S., Vol. V., pp. 195, 206, 288, 289, 324, 325. 



238 OBSERVATIONS UPON MR. HALLETT's ARGUMENT. 

most likely to effect their safety and happiness," they were fight- 
ing the old dragon of Passive Obedience, now long since dead ; 
to our age, the shadow of a peril long past and apparently so 
baseless, that we can scarcely realize that it ever existed. By 
this declaration, in other words, the statesmen of the Revolution 
meant merely to deny, that the people could not, without mortal 
sin, arrest their rulers in a career of usurpation, even if their op- 
position should terminate in blood ; and to affirm, that govern- 
ment being instituted for the "good of the people, and not the 
people created as slaves to the government, obedience was due 
from the one to the other only so long as it was not destructive 
of the ends of government. 

The same motives which led to the insertion of the clause in 
the Declaration of Independence, induced the framers of our 
Constitutions to place it in the Bills of Rights prefacing those 
instruments. 

§ 244. A confirmation of this construction of this clause in 
our Constitutions is found in the context to it in some of those 
instruments. Thus, the Maryland Constitution of 1776, the New 
Hampshire Constitution of 1792, and the Tennessee Constitu- 
tion of 1834, contained immediately after the clause in question 
the following declaration : — 

" The doctrine of non-resistance against arbitrary power and 
oppression, is absurd, slavish, and destructive of the good and 
happiness of mankind." 

§ 245. It remains now to notice the third and last kind of 
documents referred to, namely, Constitutions containing clauses 
in some respects resembling those commented upon above, but 
of which the legal effect is totally different. These are the Con- 
stitutions of Virginia, Rhode Island, and Maryland. 

In the Bills of Rights of the various Virginia Constitutions 
is found the following declaration : — 

" That government is, or ought to be, instituted for the com- 
mon benefit, protection, and security of the people, nation, or 
community. Of all the various modes and forms of govern- 
ment, that is best which is capable of producing the greatest 
degree of happiness and safety, and is most effectually secured 
against the danger of maladministration ; and that when any 
government shall be found inadequate or contrary to these 
purposes, a majority of the community hath an indubitable, in- 



OBSERVATIONS UPON MR. HALLETT's ARGUMENT. 239 

alienable, and indefeasible right to reform, alter, or abolish it, 
in such manner as shall be judged most conducive to the public 
weal." 

Now, the authors of this declaration evidently intended by it 
to assert for " a majority of the community " either a legal 
or a revolutionary right. If it was the latter, why confine to a 
majority a right which belongs to one man or a hundred men 
as perfectly as to a million, or to a majority of all the citizens ? 

Again : unless by the term majority be meant that which is 
greater, not in numbers, but in force, the clause, as declaratory 
of a revolutionary right, is absurd. Nature knows no majority 
but that of force. The majorities, of which we hear so much, 
of the male adult citizens invested with the suffrage, are matters 
of positive regulation. Does Nature determine the age at which 
a citizen becomes an adult citizen ? or does she confine the 
exercise of the suffrage to males only ? 

As, however, that use of the word majority is unprecedented, 
it is clear that the words referred to were intended to assert a 
legal right. But if the right belongs to a majority to alter or 
abolish the existing form of government as a legal right, it must 
be to a majority of the electors, acting in pursuance of some 
law passed according to the forms of the Constitution. No 
other majority and no other people are known to the laws, nor 
could the action of any other majority or any other people be 
denominated legal. I conclude, therefore, that the clause refers 
merely to the ordinary and accepted modes of amending or 
repealing Constitutions, leaving a choice of them to the existing 
government. 

That the words referred to have been generally considered 
objectionable, as liable to misconstruction, may be inferred from 
the fact that, although a great number of the Constitutions 
formed in other States have copied the Virginia declaration, not 
one of them has ever retained those words. One instance will 
suffice. The Vermont Bill of Rights declares "that the com- 
munity " — not " a majority of the community," as in that of 
Virginia — " hath an indubitable, inalienable, and indefeasible 
right," &C.1 

1 See also the Constitutions of Connecticut, 1818; Alabama, 1819; Missis- 
sippi, 1832; Tennessee, 1834; Arkansas, 1836; Pennsylvania, 1838; Florida, 
1839; Texas, 1845 ; Kentucky, 1860; and Oregon, 1857, — in which the same 
omission is observable. 



240 OBSERVATIONS UPON MR. HALLETT'S ARGUMENT. 

§ 246. In the Rhode Island Constitution, framed in 1842, is 
found the following declaration : — 

" In the words of the Father of his Country, we declare, that 
' the basis of our political systems is the right of the people to 
make and alter their Constitutions of government ; but that the 
Constitution which at any time exists, till changed hy an explicit 
and authentic act of the whole people, is sacredly obligatory upon 
all.' " 

So, also, to a similar effect, is a clause in the Maryland Con- 
stitution of 1851, which declares, — 

" That all government of right originates from the people, is 
founded in compact only, and instituted solely for the good of 
the whole ; and they have at all times, according' to the mode pre- 
scribed in this Constitution, the unalienable right to alter, reform, 
or abolish their form of government, in such manner as they may 
deem expedient^'' 

In these two Constitutions there is no declaration of the right 
of revolution, those clauses which are usually so worded as to 
assert that right being, in these, confined by restrictive clauses, so 
as to make the right involved a mere legal right to alter or abol- 
ish forms of government in modes appointed hy law. 

It is obvious — recurring to the clause in the Rhode Island 
Constitution — that, if a form of government remains unaltered 
until " changed by an explicit and authentic act of the whole 
people," it will remain so forever, unless the modes and instru- 
mentalities employed to effect the change are appointed and 
regulated by positive law. The whole people cannot meet in 
Convention. No declaration of their will can be explicit, no 
representation of them by a few can be authentic, unless made 
and authorized through some organ empowered to utter their 
voice. 

In the Maryland declaration it is difficult to give any effect at 
all to the concluding words, " in such manner as they may deem 
expedient." Referring to the debates preceding the adoption of 
the section, it is apparent that the effect of inserting the clause 
restricting alterations of the Constitution "to the mode pre- 
scribed in this Constitution," was not well considered. Striking 
out from the clause, as it now reads, the restrictive words, 
it conforms closely to those inserted in so many of our Consti- 
tutions of which I have before spoken. As Maryland had suf- 



SECESSION CONVENTIONS. 241 

fered from revolutionary attempts to alter her Constitution, her 
Convention desired to narrow within safe limits that important 
right. It therefore inserted the restrictive words, but neglected 
to strike oiit those which are significant only as declaratory of 
the old revolutionary right, thus seeming to negative its own 
intention. The only construction that can be given to the sec- 
tion which will allow all of its parts to stand, is to refer the 
clause, " in such manner as they may deem expedient," to the 
words " alter " and " reform," and not to the nearer word " abol- 
ish." It would then mean that the people have an inalienable 
right, in the mode prescribed in the Constitution, to alter or 
reform the same in such manner as they may deem expedient — 
that is, make such changes therein as they please — or the right 
wholly to abolish it. Thus, by a sacrifice of grammatical accu- 
racy, the work of the Convention is redeemed from self-contra- 
diction. 

§ 247. {c). The last variety of Conventions which I shall 
itiention consists of those exceptional bodies by which were 
engineered, first, the so-called secession of certain slave States 
from our Union in 1860 and 1861 ; and secondly, the reconstruc- 
tion of those States preparatory to a resumption of their normal 
relations to the Union in 1864, 1865, and 1866. 

The States concerned, in the order in which their ordinances 
of secession were passed, were South Carolina, Mississippi, 
Florida, Alabama, Georgia, Louisiana, Texas, Arkansas, Vir- 
ginia, Tennessee, and North Carolina — the ordinance of the 
first having been passed in December, 1860, and that of the last 
in May, 1861. 

It is not my purpose to enter fully upon the history of the 
Secession Conventions, since. the view I take of them renders 
only a few of the leading facts relating to the call of these 
bodies important. 

The Secession Conventions were called avowedly to effect, 
by revolutionary means, the disruption of the American Union, 
established by the war of Independence, and confirm«?d by the 
Federal Constitution of 1789. The election of Mr. Lincoln 
upon a platform deemed menacing to the interests of those 
States, was the wrong, to redress which the rupture of their 
constitutional relations to their sister States was attempted. By 
concert among the leading men of the South, and perhaps in 
16 



242 SECESSION CONVENTIONS. 

pursuance of a long cherished purpose, Conventions were called 
in every State but one above named, as soon after the announce- 
ment of Mr. Lincoln's election as the popular attachment to the 
existing government could be made to give way to a desire for 
Southern Independence. Tennessee called no Convention, but 
as her legislature assumed to act as a Convention, and in that 
capacity passed a pretended Ordinance of Secession, I have reck- 
oned that body amongst the Secession Conventions. 

§ 248. The mode of calling these Conventions was as follows : 
The legislatures of many of the States meeting, by law, not far 
from the time of the Presidential election, the friends of seces- 
sion easily secured the passage of Acts calling Conventions in 
those States. Where those bodies were not soon to assemble, it 
became necessary to prevail upon the governors of the States 
to call extra sessions of their legislatures — a thing easily ac- 
complished, as most of those officers were ardent champions of 
the secession cause, and perhaps, for that reason, had been 
chosen to fill their respective places. When assembled, these 
bodies found little difficulty in falling in with the current and 
calling Conventions, generally declaring the object of them to 
be to consider the " relations between the government of the 
United States, the people and governments of the different 
States, and the government and people " of the State concerned, 
" and to adopt such measures for vindicating the sovereignty of 
the State and the protection of its institutions " as should 
appear to be demanded.^ In most of the States, the question 
of calling those Conventions was not submitted to the people, 
though in Tennessee and North Carolina it was so submitted, 
and was voted down, the electors in the latter State, neverthe- 
less, at the same time, with a singular inconsistency, electing 
delegates as required, but choosing such as favored the Union. 
The Convention met, and at its first session refused to vote an 
Ordinance of Secession ; but, after the bombardment of Fort 
Sumter, the cause of the Union appearing hopeless, the same 
body was reassembled, and voted the State out of the Union 
unanimously ! 

In Texas, the Governor, Houston, refused to call the legisla- 

1 Act calling the Missouri Convention of 1861, sec. 5. That Missouri did not 
secede was probably no fault of the pro-slavery legislature which passed this 
Act. 



CHARACTER OF THE SECESSION CONVENTIONS. 243 

ture together, but some sixty of the conspirators against the 
Union, signed a document convening that body, and a Conven- 
tion was thereupon called, and an Ordinance of Secession passed. 
In Alabama the Convention was called by Governor Moore, in 
pursuance of an Act of the legislature, passed in anticipation of 
the election of a Republican to the office of President of the 
United States, authorizing and requiring him on the happening 
of that contingency to call a Convention, to take such steps as 
should protect the power and interests of the State. 

In none of these States were the Ordinances of Secession sub- 
mitted to the people, save in Texas, Tennessee, and Virginia, 
and in those cases they were submitted under systems of fraud 
and violence ingeniously contrived to insure, as they did insure, 
the adoption of the ordinances, at all events. 

§ 249. Admitting, however, that the Secession Conventions 
were all called in pursuance of the legislative authority of their 
respective States, they are nevertheless to be set down as Revo- 
lutionary Conventions for two reasons : — 

1. The legislatures calling them transcended their constitu- 
tional authority in so doing. The Constitution of the United 
States was a part of the Constitution of each of those States, 
and all the State officers, legislative, executive, and judicial, 
were bound by oath to support it. In taking steps to overturn 
that Constitution and to disrupt the Union, every member of the 
State legislatures calling Conventions with the ulterior purpose 
of passing secession ordinances in any event, was entering 
upon a course of revolution, and became guilty of perjury and 
treason. 

2. The Secession Conventions did not confine themselves to 
the recommending, or even to the enacting of changes in their 
several State Constitutions, which, as we have seen, is the 
utmost limit of the powers of Constitutional Conventions; but 
they severally assumed general powers of administration and 
government. Many, and perhaps all of them, overhauled their 
State Constitutions ; but they did more, — they appropriated 
moneys out of the State treasuries, raised troops, and appointed 
officers, with a view to an armed conffict with the United States, 
should the latter dispute their right to secede. When the con- 
vention of delegates which met at Montgomery, Alabama, to 
frame a Constitution for the Confederacy of the seceding States, 



244 EECONSTEUCTION CONVENTIONS. 

submitted its project to the States for ratification, the State 
Conventions took it upon themselves to ratify that instrument, 
not only without express instructions, but in evident violation 
of those which were implied in the Acts calling them together. 

Like the Provincial Conventions, therefore, which engineered 
our separation from Great Britain, the Secession Conventions 
were simply provisional organizations resting upon a revolution- 
ary basis, and exercising such powers as were deemed requisite 
by the insurgent populationsto insure the success of the revolu- 
tion upon which they had entered. In one respect, however, 
they differed from the Conventions of 1776. The existing estab- 
lishments, the State organizations, were, in 1861, all conducted 
in the interest of the rebellion ; it was, therefore, unnecessary for 
the Conventions, running a parallel course with the various 
departments of the State governments, to assume so wide gov- 
ernmental powers as did the Provincial Conventions in 1776, to 
which the colonial governors and Assemblies were generally 
hostile. 

§ 250. The Secession Conventions being thus purely Revolu- 
tionary Conventions, as defined in the first chapter, they must 
depend for their justification solely upon the success of the revo- 
lution which they originated. That revolution, it is now a 
matter of history, did not succeed in any one of the eleven 
States. The armies engaged in the attempt to wrest those 
States from the Union were overthrown, having succeeded only 
in dismantling those States, and placing them in abnormal 
relations to the Union. Precisely what those relations were, 
at the moment the rebel armies surrendered, it is not easy to de- 
termine ; nor, perhaps, is it necessary, further than to state, that 
the revolting States were found to be under the sway of certain 
so-called governments, how formed does not matter, which were 
alien to the Union, the State Constitutions, under which the 
initial steps in the rebellion had been taken, having been sever- 
ally overthrown. Such governments obviously could not be 
recognized by the Federal authorities as existing at all, for any 
purpose. 

Here, then, were brought again into relations of practical sub- 
jection to the Union, certain integral populations, which had 
once been Constitutional States, but which having, by truancy 
from constitutional courses, lost something necessary to that 



RECONSTRUCTION CONVENTIONS. 245 

character, were such no longer — were, indeed, little more than 
"geographical denominations;" communities, which, although 
as much in the Union, territorially, as ever, were properly neither 
constitutional States, nor constitutional Territories, but States 
which had, sua sponte, for purposes of ambition, divested them- 
selves of their constitutional apparel, and donned that of treason 
and rebellion, and so had forfeited their prerogative as States to 
participate in governing the Union, and been relegated to a 
condition analogous to that of Territories — a condition in which 
they belonged to the Union, but had rightfully no governing 
function whatever, local or general. 

§ 251. Standing thus, it is evident, there were necessary to 
lead off in any movement with a view to the rehabilitation of 
such States in their normal relations to the Union, Conventions 
to provide them with Constitutions. This was universally ad- 
mitted, but how to call those Conventions, was a question upon 
which there were wide divergences of opinion. 

In my judgment, there were but four possible modes of calling 
such Conventions. 

1. The inhabitants of the rebel States might, by a spontane- 
ous movement, without the intervention of any recognized 
authority whatever, have called Conventions to reconstruct their 
governments. This course would have required, obviously, the 
tacit consent of Congress, but, as explained in the first part of 
this chapter,^ it would have been liable to great practical objec- 
tions, and would, besides, have been wholly irregular, not to say 
revolutionary. 

2. The second course was for the so-called legislatures of the 
seceded States, elected under the rebel regime^ to initiate, with 
the consent or connivance of Congress, the movements for recon- 
struction in their respective States. This course, however, was 
politically impossible. The government of the United States 
could not recognize the rebel legislatures, as possessed of any 
political functions whatever, without, by implication, admitting 
the validity of the act of secession. If those bodies were to 
meet, it must be as so many individuals liable to the penalties 
of treason, and having no rights which the government of the 
Union was bound to respect, except such as they held in com- 
mon with other public enemies. 

1 Seea«<e, §§ 114, 115. 



246 EECONSTRUCTION CONVENTIONS. 

§ 252. 3. As a third course, the Congress of the United States 
might have inaugurated the movement toward reconstruction 
by calling Conventions in the lately insurgent States. 

Undoubtedly, this course would have been irregular, since 
Cohgress has power to pass enabling Acts only for Territories, 
strictly so called, and not for States. It is true, as we have 
seen, that the rebel communities, on the surrender of the Con- 
federate armies, were not constitutional States. But neither 
were they constitutional Territories. They were States whose 
practical relations to the Federal whole were in a state of dis- 
ruption. In other words, they were quasi States, so far as their 
historical relations to the Union were concerned, but quasi 
Territories, in relation to the exercise of Federal rights. 

Being neither States nor Territories, but communities pre- 
senting, in their different relations, the aspects of both. Congress 
could not regularly act toward them as though they were either. 
It could not permit them to call, nor could it itself regularly 
call for them, Conventions to reconstruct their subverted govern- 
ments. 

4. Finally, the requisite nucleus for reconstruction might have 
been provided by the President of the United States, acting in 
his capacity of Commander-in-Chief of the national armies, en- 
gaged in crushing the rebel Confederacy. 

With reference to this mode, however, it is evident, that it 
would have been legitimate only as a war measure, the power 
of the President to act in the manner supposed, being simply a 
war power, and therefore proper only whilst the war should last. 
On the coming of peace, all political structures built up by, and 
under the shelter of the military arm for the temporary govern- 
ment of the conquered districts, would melt away, save as the 
law-making power of the Union should recognize and confirm 
them. They would not have been legally or regularly formed. 
Judged from a constitutional point of view, they would have 
been based simply on the will of the commanding general, and, 
therefore, have been akin to institutions purely revolutionary, as 
founded without the authority of law. That this is so, becomes 
the more probable, when it is considered, that it has never, in 
any one of the States of the Union, or in the Union itself, been 
recognized as within the competence of the executive branch of 
the government to call a Convention : that is, of the executive, 



RECONSTRUCTION CONVENTIONS. 247 

as such. Considered as the commander of armies in the field, on 
the other hand, and, in that capacity, called upon to provide for 
the government temporarily of the territory overrun, because the 
President could do any thing, he could doubtless call a Conven- 
tion to frame a provisional Constitution ; or, should he prefer to 
do so, could himself, in general orders, establish a Constitution. 
But, the point insisted upon is, that such a Convention would 
lack the essential requisites of legitimacy, as a Constitutional 
Convention. The act of the President would be justifiable only 
upon the ground of its necessity, and hence the body convened 
would stand on the same footing as the English Convention, 
called by William of Orange on the abdication of James II., 
which was unquestionably a. revolutionary body. 

§ 253. These four modes of proceeding being all liable to ob- 
jections, the question arises, which, on the whole, was prefer- 
able ? 

The answer is — that mode which, beside being attended by 
the fewest practical evils, was most conformable to established 
precedents in the United States, in times of peace and constitu- 
tional order. 

Tried by this test, it is, in my judgment, beyond question, that 
the third mode, that by the direct intervention of Congress, was 
to be preferred. 

Congress was the grand Council of the nation. Its interfer- 
ence in the business of reconstruction, though irregular, would 
be effected by some formal Act or Resolution, in which could be 
provided, to the satisfaction of the nation at large, guarantees 
not only for the private rights of the citizens of the States con- 
cerned, but for the public liberties. Besides, in one aspect of 
the case, there would, in the intervention of Congress, be an 
intrinsic propriety, sufficient almost to stamp the act as consti- 
tutionally rightful and regular. The legislature of the Union 
is, as we have seen, as to Federal relations, the legislature of 
each State. As the rebel States, when admitted to full partici- 
pation in the government, at once assume a governing relation 
to the other States, co-members with them of the same Federal 
whole, the question of their reconstruction, as a practical ques- 
tion, is a Federal one, and ought to be settled by Federal author-" 
ity. Of all the departments of the general government. Congress 
is undoubtedly the one to which can be most safely intrusted 



248 RECONSTRUCTION CONVENTIONS. 

the power of calling the Conventions necessary for that purpose. 
As, in such a case, these bodies would be called in each State 
by that legislature which had supreme jurisdiction over the 
Federal relations of such State, the departure from the strictest 
constitutional precedents would be but nominal. 

§ 254. The mode actually adopted was the fourth, by the 
intervention of the President of the United States, save in Vir- 
ginia, where reconstruction was inaugurated by the spontaneous 
action of the loyal citizens of the State. In all of them, there- 
fore, the Conventions called for the purpose indicated, were, in 
my judgment, irregular. 

The history of the call of those bodies, considering separately 
such as were convened before, and such as were convened after 
the close of the secession war, is as follows. 

The particulars of the call of the Virginia Convention of 
1861, by which the government of that State, wrested from its 
constitutional relations, was reconstructed, have been given in 
former sections of this chapter, when treating of the formation 
of the State of West Virginia.^ The principal facts only need 
be stated, that on the 13th of May, 1861, one month after the 
passage of the Secession Ordinance, " by a movement almost 
spontaneous, the loyal people of the Northwestern counties 
assembled in mass meeting at the city of Wheeling, to deliber- 
ate on their condition and the steps it behooved them to take. 
After much discussion, the result was that they invited the loyal 
people of the whole State to assemble in Convention at the 
same city, on the 11th of June then next, ' to devise such meas- 
ures and take such action as the safety and welfare of the loyal 
citizens of Virginia may demand.' " ^ This Convention was 
composed of the members of the legislature previously duly 
elected under the existing Constitution and laws, and of dele- 
gates proportioned to the population of the counties, each being 
entitled to at least one. The Convention, having delegates from 
counties situated to the east as well as the west of the Allegha- 
nies, on the 13th of June, adopted unanimously a declaration in 
which, after briefly reciting the acts of the usurping Convention 
and executive, ' in the name and on behalf of the good people 

1 Ante, §§ 187-190. 

2 Address of the Delegates composing the New State Constitutional Conven- 
tion, to their Constituents, adopted February l^th, 1863, p. 12. 



EECONSTRUCTION CONVENTIONS. 249 

of Virginia,' they solemnly declared, that the preservation of 
their dearest rights and liberties imperatively demanded the reor- 
ganization of the government of the Commonwealth, and that 
all the acts of the Convention and executive tending to separate 
the Commonwealth from the United States, or to levy and carry 
on war against them, were without authority, and void. The 
Convention then proceeded to appoint, for a limited period, a 
Governor and other executive officers, and directed the legisla- 
ture, elected under the old regime, to assemble at Wheeling 
within a month, requiring the members to take an oath to sup- 
port the reorganized government.^ 

That these proceedings were revolutionary, there can be no 
doubt. It is equally clear, that they were justifiable on the 
ground of necessity, unless it be true, that the initiative should 
have been taken by Congress, as intimated in a preceding 
section. 

§ 255. The only other instances of attempted reconstruction 
of seceding States, before the close of the war, were those of 
Louisiana and Arkansas, which both took place under the Proc- 
lamation of President Lincoln, of December 8th, 1863. This 
proclamation contained an offer of pardon and amnesty to per- 
sons engaged in the rebellion, with certain exceptions, upon their 
ceasing to maintain an attitude of hostility to the United States, 
and taking the oath therein prescribed. It then proceeded as 
follows : — 

" And I do further proclaim, declare, and make known, that 
whenever, in any of the States of Arkansas, Texas, Louisiana, 
Mississippi, Tennessee, Alabama, Georgia, Florida, South Caro- 
lina, and North Carolina, a number of persons, not less than one- 
tenth in number of the votes cast in such State at the Presiden- 
tial election of the year of our Lord 1860, each having taken the 
oath aforesaid, and not having since violated it, and being a 
qualified voter by the election law of the State existing imme- 
diately before the so-called Act of Secession, and excluding all 
others, shall reestablish a State government, which shall be re- 
publican, and in nowise contravening said oath, such shall be 
recognized as the true government of the State, and the State 
shall receive thereunder the benefits of the constitutional pro- 
vision, which declares that the United States shall guarantee to 

1 Address of the Delegates, &c., uhi supra. 



250 RBCONSTEUCTION CONVENTIONS. 

every State in this Union a republican form of government, and 
shall protect each of them against invasion ; and, on application 
of the legislature, or the executive (when the legislature cannot 
be convened), against domestic violence." 

The concluding paragraph of the proclamation was in the 
following words, indicating that, in the view of Mr. Lincoln, the 
mode of initiating a movement for reconstruction by executive 
action, was not the only possible one: — 

. . . . " This proclamation is intended to present the people 
of the States wherein the national authority has been suspended, 
and loyal State governments have been subverted, a mode in 
and by which the national authority and loyal State govern- 
ments may be reestablished within said States, or in any of 
them ; and while the mode presented is the best the executive 
can suggest, with his present impressions, it must not be under- 
stood that no other possible mode would be acceptable." ^ 

§ 256. In pursuance of this proclamation, Louisana and Ar- 
kansas were provided with loyal State governments; the people 
of the former having been called upon to take the necessary 
steps by a proclamation of Major-General N. P. Banks, of 
January 11, 1864. The first step was, under that proclam- 
aHon, to elect State officers on the 22d of February, 1864, 
and the second to choose delegates to a Convention on the 
first Monday of April following, to revise the Constitution of 
the State. The particulars of the proceedings in Arkansas were 
similar. 

Were any argument needed to show that the reconstruction 
of these States, based as it was on the proclamation of the 
Commander-in-Chief of the armies of the United States, was 
irregular and revolutionary, it would be found in the statement 
of General Banks, in his proclamation, by which the proceed- 
ings in Louisiana were justified, that the fundamental law of the 
State was martial law. The only law in the State was the 
arbitrary will of the commanding general, which was no law at 
all. The proceedings, therefore, though not illegal, in the sense 

1 It is a matter of history, that the mode of reconstruetioa blocked out by 
this proclamation was not satisfactory to Congress. An Act was passed by that 
body relating to the subject, and containing its plan of reconstruction, but was 
vetoed by the President. The disagreement thus begun, has been continued 
between the successor of President Lincoln and the 39th Congress, each claim- 
ing the right to inaugurate the work of reconstruction. 



RECONSTRUCTION CONVENTIONS. 251 

of contravening any positive law then in force, were wholly with- 
out latv, and so revolutionary.^ 

§ 257. The Reconstruction Conventions of the eight remain- 
ing States — North Carolina, Mississippi, Florida, Alabama, 
Georgia, Texas, Tennessee, and South Carolina — were all 
convened after the close of the war, in pursuance of the au- 
thority of President Johnson. As the proceedings in all these 
cases were similar, I shall refer only to those that occurred in 
North Carolina, the first State in the order of time, in which 
attempts at reconstruction were made. 

On the 29th of May, 1865, the following proclamation, relat- 
ing to the reorganization of North Carolina, was issued by 
President Johnson, namely : — 

" WJiereas, the 4th section of the 4th Article of the Constitu- 
tion of the United States declares, that the United States shall 
guarantee to every State in the Union a republican form of 
government, and shall protect each of them against invasion 
and domestic violence ; and whereas, the President of the 
United States is, by the Constitution, made Commander-in- 
Chief of the army and navy, as well as chief civil executive offi- 
cer of the United States, and is bound by solemn oath faith- 
fully to execute the office of President of the United States, 
and to take care that the laws be faithfully executed ; and 
whereas, the rebellion which has been waged by a portion of 
the people of the United States against the properly constituted 
authorities of the government thereof, in the most violent and 
revolting form, but whose organized and armed forces have now 
been almost entirely overcome, has, in its revolutionary progress, 
deprived the people of the State of North Carolina of all civil 
government ; and whereas, it becomes necessary and proper to 
carry out and enforce the obligations of the United States to 
the people of North Carolina, in securing them in the enjoy- 
ment of a republican form of government : 

" Now, therefore, in obedience to the high and solemn duties 
imposed upon me by the Constitution of the United States, and 
for the purpose of enabling the loyal people of said State to or- 
ganize a State government, whereby justice may be established, 
domestic tranquillity insured, and loyal citizens protected in all 

1 See ante, §§ 109-113, where the signification of the term " revolutionary," 
as used by me, is given. 



252 RECONSTRUCTION CONVENTIONS. 

their rights of life, liberty, and property, I, Andrew Johnson, 
President of the United States, and Commander-in-Chief of the 
army and navy of the United States, do hereby appoint William 
W. Holden Provisional Governor of the State of North Caro- 
lina, whose duty it shall be, at the earliest practicable period, to 
prescribe such rules and regulations as may be necessary and 
proper for convening a Convention, composed of delegates 
chosen by that portion of the people of said State who are loyal 
to the United States, and no others, for the purpose of altering 
or amending the Constitution thereof; and with authority to ex- 
ercise within the limits of said State all the powers necessary 
and proper to enable such loyal people of the State of North 
Carolina to restore said State to its constitutional relations to 
the Federal government, and to present such a republican form 
of State government as will entitle the State to the guarantee of 
the United States therefor, and its people to protection by the 
United States against invasion, insurrection, and domestic vio- 
lence : Provided that, in any election that may be hereafter 
held for choosing delegates to any State Convention as afore- 
said, no person shall be qualified as an elector, or shall be eligi- 
ble as a member of such Convention, unless he shall have previ- 
ously subscribed the oath of amnesty, as set forth in the Pres- 
ident's proclamation of May 29th, a. d. 1865, and is a voter 
qualified as prescribed by the Constitution and laws of the State 
of North Carolina in force immediately before the 20th day of 
May, A. D. 1861, the date of the so-called Ordinance of Secession ; 
and the said Convention, when convened, or the legislature that 
may be thereafter assembled, will prescribe the qualification of 
electors and the eligibility of persons to hold office under the Con- 
stitution and laws of the State, a power the people of the sev- 
eral States composing the Federal Union have rightfully exer- 
cised from the origin of the government to the present time." 

§ 258. In pursuance of this proclamation. Governor Holden 
summoned a Convention, which met at Raleigh on the 2d day 
of October, 1865, and remodelled the Constitution of North 
Carolina. 

Under proclamations from time to time issued by the Presi- 
dent in terms substantially identical with those above given, 
Conventions met in all the States which were in a disorganized 
condition at the close of the war, and in like manner reformed 
their Constitutions. 



RECONSTRUCTION CONVENTIONS. 253 

With the question which has so agitated the Union, as to the 
proper department of the government to recognize the recon- 
structed State organizations, framed by those Conventions, 
whether the executive, under the Act of 1795, passed to give 
effect to Article 4, section 4, of the Federal Constitution, above 
quoted, or the Congress of the United States, I do not propose 
to meddle. What I have to do with here is the previous ques- 
tion as to the legitimacy of the Conventions by which those 
governments were formed, — a question totally distinct and de- 
pending on different principles ; for it is evident, that, whatever 
be the proper authority to recognize those governments, the act 
of recognition might give legitimacy to organizations formed by 
Revolutionary, no less than by regular and lawful. Conventions. 

As I have before intimated, the Conventions called by the 
provisional governors appointed by President Johnson, were, in 
my judgment, all of them, irregular and illegitimate. They 
were called by the Commander-in-Chief of our armies in the 
exercise of the war power given to him by the Constitution. 
While that exercise of power was not, in the technical sense of 
the term, illegal, — for nothing is illegal to him who has by law an 
absolute discretion, — it was, nevertheless, from the very nature 
of the case, without the law and the Constitution, extra legem, 
— resting for its limitations, as for its justification, solely upon 
the necessity of the case. The only differences between the 
arbitrary acts of a military commander, under the Constitution, 
and acts strictly revolutionary, are, first, — that the former are 
done with a view to the conservation and defense, and the latter 
with a view to the disruption or overthrow, of the State ; and, 
secondly, that the former, therefore, are not, and the latter are, 
punishable as crimes under the penal code. In their essential 
nature the acts are identical, as being lawless acts, acts done ad 
arbitrium and not ad legem. Let a military commander step 
but a hair's breadth beyond what is demanded by necessity, 
shedding a single drop of blood when the shedding of blood is 
no longer demanded, and his act is a crime, or, if it have a 
political intent and bearing, an act of revolution, in the bad 
sense of the term, as truly as that of one who attempts to sub- 
vert the Constitution of the State. This shows that the two 
kinds of acts are substantially the same. 

But, however this may be, it is clear that it is not regularly 



254 MONTGOMERY CONVENTION OF 1861. 

or constitutionally one of the duties of an executive magistrate 
to call Conventions to alter or amend the Constitution, and, 
particularly, is this true of the President, with reference to Con- 
ventions in the States. For such a magistrate to do it is, to 
say the least of it, irregular, and to permit it, except under the 
pressure of an overruling necessity, — a necessity such as would 
excuse any act, however unauthorized or revolutionary, — is 
dangerous. 

§ 259. In concluding this survey of the various Conventions 
thus far held in the United States, it will be proper to refer to 
the so-called Convention held at Montgomery, Alabama, in 
1861, to frame a Constitution for the Confederacy of seceded 
States. This Convention was not called to frame a Constitu- 
tion for either the United States, a State in the Union, or a Ter- 
ritory seeking admission into the Union, but for an imaginary 
commonwealth, — the dream for a third of a century of the 
States Rights School of politicians, and for four years the sup- 
posed realization of that dream on the banks of the James 
B/iver, — and for that reason not proper to be classed with either 
of the varieties of Conventions I have been considering. In 
the same category are to be placed all such Conventions as 
were held in the separate States of the " Confederacy " between 
the years 1861 and 1865, to alter or abolish the so-called Con- 
stitutions of those States, as members of the imaginary com- 
monwealth referred to — all equally fictitious Constitutions for 
commonwealths that had no substantial basis either in law or 
in fact. 

My only purpose in mentioning these bodies is to note that, 
so far as they seemed to possess a de facto character as Consti- 
tutional Conventions, that is, so far as they were not mere 
schools of abstractionists, engaged, for their own recreation, in 
framing imaginary Constitutions, they were wholly illegitimate 
and revolutionary. 

§ 260. Having thus considered, from the two points of view 
indicated in the opening part of this chapter, the question, 
How should a Convention be called ? I pass to the other ques- 
tion there propounded, namely — 

II. By whom should Conventions, to be legitimate, be 
elected ? 

This question will be considered from the same two points of 



BY WHOM CONVENTIONS SHOULD BE ELECTED. 255 

view as the former, namely, (a), from that of principle, and, (6), 
from that of historical precedents. 

(a). Upon principle, the question, by whom Conventions 
should be elected, is one of little difficulty. 

1. The sovereign body, we will suppose, is already organized 
under a government, which of course is one of its own appoint- 
ment, comprising the usual departments for its actual adminis- 
tration. Having established it, the sovereign retires from view, 
leaving in the hands of that government full powers not only to 
operate, but to initiate the movements necessary to modify, re- 
pair, or renew, the system.^ One of the departments in every 
adequate system of government is the people, in its narrow sense, 
meaning the body of persons named by the sovereign to be the 
immediate depositaries of governmental powers, the electors. 
By this body, or by some individuals selected from it, according 
to established laws, every function of government, every political 
act, must regularly be performed, and by no others. The elec- 
toral circle determined by the Constitution, so long as that instru- 
ment remains unchanged, is a closed one. It is a circle, more- 
over, which can be opened and enlarged only by the sovereign 
body itself, acting in the modes prescribed by the Constitution 
or by the customary law of the land. 

Suppose, now, a Convention is to be chosen to change the 
fundamental law, its members must be elected by the body 
invested with political functions, the electors, or by some deter- 
minate portion of it, in conformity to the laws and customs of 
the commonwealth. \ The legislature, as we have seen, is the 
proper body to direct the election and assembling of the Con- 
vention. Common sense would indicate that delegates intended 
to represent, first, the electoral body, and, through that, the sov- 
ereign, if they are to represent truly the different phases of opin- 
ion current among the people at large, should be chosen by the 
entire electoral body. Thus, the requirements of principle and 
of expediency would be fully satisfied. To authorize persons 
outside the circle of the electors to participate in the work, 
would be to extend the exercise of political functions to persons 
excluded by the Constitution ; that is, by an act of a mere 
department of the government, to modify or repeal a solemn 
provision of that instrument, by which its own powers are deter- 
mined. 

1 See ante, § 25. 



256 BY WHOM CONVENTIONS HAVE BEEN ELECTED. 

§ 261. 2. If, on the other hand, the sovereign political body 
be in a state of disorganization, its Constitution overthrown, 
and the departments of the public administration deposed from 
all authority, and a Convention is to be called to rebuild the 
fabric of government, by whom then should the delegates be 
chosen ? 

As, in the case supposed, all action would be the direct exer- 
cise of sovereign power,^ and in its essential nature revolution- 
ary, there would be no law to govern the election but that of 
expediency. Such persons might then be permitted to vote as 
should at the time seem fitted to exercise the franchise wisely. 
In general, however, a people thus situated would find it expe- 
dient to confine the right of voting to the class by the laws of 
the land, now obsolete, invested with the franchise — the basis 
and apportionment of representation according to those laws 
being just and equal. Where they were unjust or unequal, 
the right of the people to change or abolish them could not be 
quesftioned. 

§ 262. (b). It is believed that the precedents developed thus 
far in our history, as well in times of constitutional order as in 
those of revolution, conform to the principle just announced. 

1. The Conventions called to revise Constitutions or to frame 
new ones, during the period intervening between 1783 and the 
present time, excluding the Secession and Reconstruction Con- 
ventions, have, with scarcely any exceptions, been elected by the 
persons by existing laws entitled to exercise the suffrage at the 
the general State elections. Thus, the Acts calling a consider- 
able proportion of these Conventions expressly gave the right 
of electing delegates to the "electors in the several counties," 
or to the " qualified electors." ^ A rather larger proportion gave 
the right to all " persons qualified to vote for representatives in 
the State General Assembly," — the phraseology varying some- 
what, but in all of them investing with the right of voting for 
delegates the class of persons constituting the electors of the 
State.^ In a few cases the right has been given in general 

1 See ante, § 23. 

2 Of this class are those of Pennsylvania, 1789 and 1837 ; Ohio and Michi- 
gan, 1850 •, Iowa and Minnesota, 1857; Kansas, 1859 (Wyandotte Conven- 
tion) ; West Virginia, 1861 ; and Maryland, 1864. 

3 To this class belong those of Massachusetts, 1779, 1821, and 1853 ; Dela- 
ware, 1831 and 1852; JSTorth Carolina, 1835; New York, 1846; Illinois, 1847 
and 1862; Kentucky, 1849; and Virginia, 1850. 



BY WHOM CONVENTIONS HAVE BEEN ELECTED. 257 

terms to the " freeholders," ^ to " the inhabitants of each county 
qualified to vote for Governor and Senators," ^ or to " the inhab- 
itants of each county qualified to vote for Senators." ^ In these 
cases, however, it turns out, upon inspection of the Constitu- 
tions or laws regulating the right of suffrage, that by the classes 
indicated were meant the general body of the electors of the 
States respectively. In the Act calling the Louisiana Conven- 
tion of 1844, and in several of the State Constitutions, which 
provide for the election of Conventions, the delegates are re- 
quired to be chosen in the same manner as members of the 
General Assembly ; or the elections to be held in the same man- 
ner and under the same regulations as antecedent elections held 
to determine the expediency of calling Conventions, at which 
latter the persons qualified to vote were the " voters," " qualified 
voters," " qualified electors," " electors qualified to vote for mem- 
bers of the General Assembly," &c.* Generally, however, in 
the cases last described, the provisions are, that if the result of 
the prior elections, at which the classes of persons named had 
voted, should be in favor of calling Conventions, the General 
Assemblies of the respective States shall call Conventions ; from 
which, I think, it may be inferred, that t/ie same voters are to 
figure in both elections.^ 

§ 263. 2. The rule which seems thus to be well-nigh univer- 
sal in times of peace and order, has generally obtained in those 
of revolution. During our first revolution, extending from 1775 
to 1783, although it is not easy to determine the question with 
accuracy, enough is known to make it probable that the Con- 
To these may be added in general the enabling Acts passed by Congress 
authorizing Conventions to frame Constitutions for Territories seeking to become 
States. The first of these was passed for Oliio, and authorized to vote for dele- 
gates all male citizens of full age, resident one year in the Territory, who had 
paid a Territorial or county tax, and had in other respects the qualifications to 
vote for Representatives in the General Assembly of the Territory. 2 U. S. Sts. 
at Large, p. 173. Substantially the same were the enabling Acts of Louisiana, 
id. p. 641 ; Indiana, 3 do. p. 289 ; Mississippi, id. p. 348 ; Illinois, id. p. 428 ; 
Missouri, id. p. 545 ; Minnesota, 11 do. p. 166 ; Kansas, id. p. 270. 

1 Act calling the Virginia Convention of 1829. 

2 Act calling the Maine Convention of 1819. 

3 Act calling the New Hampshire Convention of 1850. 

4 See the Constitutions of Ohio, 1851, and Minnesota, 1857. 

5 See the Constitutions of Wisconsin, 1848; California, 1849 ; Michigan, 1850; 
Iowa, 1857 ; Kansas, 1859 ; and West Virginia, 1863. 

17 



258 BY WHOM CONTENTIONS HAVE BEEN ELECTED. 

ventions were elected by the persons authorized under the laws 
of the several colonies to vote at general elections. In many 
cases, however, special qualifications were required to insure 
the loyalty of such as were allowed to vote. Thus, in Pennsyl- 
vania, the conference of committees by which the Convention of 
1776 was called, required, in addition to the qualifications of 
electors generally, an oath abjuring allegiance to George III., 
and undertaking not to oppose the establishment of a free gov- 
ernment by the proposed Convention. 

In a few cases, the right of suffrage was given generally to the 
" freemen of the counties," ^ to " the people," ^ or to " the sev- 
eral parishes and districts,"^ — terms which indicate the exist- 
ence of election laws determining both the voters and the modes 
of proceeding to collect and return their votes. 

To these instances may be added those of the Reconstruc- 
tion Conventions held in 1864-6, which, as is well known, were 
elected by such of the electors under the laws of the several 
States as could take the oath of allegiance, &c., prescribed by 
the executive authority of the United States. 

§ 264. A few cases must now be mentioned in which there 
was a departure from tVie principles and the cuiTcnt of the prece- 
dents set down in the preceding sections. The first of these 
was that of the Georgia Convention of 1788, which, as we have 
seen, was elected directly by the legislature.* The second case 
was that of the New York Convention of 1821. By the New 
York Constitution of 1777, sec. vii., the following persons were 
made electors, namely : all male inhabitants of full age, person- 
ally resident in one of the counties of the State, for six months 
immediately preceding the day of election, if during that time 
possessed of a freehold of the value of twenty pounds, within 
said county, or of a leasehold interest of the yearly value of 
forty shillings, and if they had been rated and actually paid taxes 
to the State. 

The Act of Assembly of March 13, 1821, calling the Conven- 
tion of that year, made essential changes in the qualifications 

1 Act calling the Delaware Convention of 1776. 

2 Act calling the North Carolina Convention of 1776 and the Vermont Con- 
vention of 1777. 

3 Act calling the Georgia Convention of 1776. 

4 See ante, §§ 148, 149. 



BY WHOM CONVENTIONS HAVE BEEN ELECTED. 259 

of electors, by authorizing to vote for delegates to that body all 
free male citizens of the State of the age of twenty-one years 
or upwards, who should possess a freehold within the State ; or 
who should have been rated and paid taxes to the State ; or who 
should have been actually enrolled in the militia of the State, 
or in a legal volunteer or uniform corps, and should have served 
therein either as an officer or private ; or who should have been 
or then were by law exempt from taxation ; or who should have 
been assessed to work on the public roads and highways, and 
should have worked thereon, or should have paid a commutation 
therefor, according to law. 

The effect of this Act was largely to extend the right of suf- 
frage. By those opposed to the Convention, it was complained, 
that it allowed negroes, excluded from the right of suffi'age by 
the Constitution and laws before that in force, to vote at the 
election of delegates to the Convention. 

§ 265. The next instance of exceptional legislation in the 
matter of electing delegates to Conventions occurred in Rhode 
Island. 

By the charter of Charles II., in force in Rhode Island until 
1842, the right to determine the qualifications of voters was 
committed to the General Assembly. We have already seen 
that, at the date mentioned, in consequence of changes of the 
population not attended by corresponding changes in the basis 
of representation, or in the qualifications for the suffrage, great 
inequalities had arisen in the political power enjoyed by differ- 
ent parts of the State and by different classes of the population. 
As a consequence, the suffrage movement was set on foot, cul- 
minating, as already explained, in the formation of the so-called 
People's Constitution, the election of State officers under it, and 
in an attempt by the pretended Governor, Dorr, to establish the 
new government, in the place of that existing under the Charter, 
by military force.^ This revolutionary attempt was easily sup- 
pressed, but the legitimate government did not confine itself to 
forcible measures to maintain its own supremacy, and to restore 
the public tranquillity. The Constitution framed by the legiti- 
mate Convention, called by the General Assembly in 1841, 
having, through the effijrts mainly of the suffi'age party, been 
rejected, another Convention was called by the same body in 
I See ante, §§ 227, 228, 



260 BY WHOM CONVENTIONS HAVE BEEN ELECTED. 

the following year, by which the present Constitution of the 
State was framed. To appease the discontent of the " People's 
Party," the General Assembly, in calling this Convention, ex- 
tended the right of suffrage for the election of delegates, repeal- 
ing the clauses of existing laws making property, payment of 
taxes, and military service qualifications for the exercise of that 
function, and retaining as the only requisite for it three years' 
residence in the State.^ 

§ 266. Tested by the principles set forth in the preceding 
sections of this work, the action of the Georgia and New 
York legislatures was unauthorized, and in palpable violation 
of the spirit of their respective Constitutions. That of the 
Georgia legislature was particularly obnoxious to censure, since 
that body undertook not only to call a Convention to remodel 
the Constitution, but itself to appoint the delegates to constitute 
that body — a proceeding which made of the latter a mere com- 
mittee of the former, and of the Constitution an ordinary stat- 
ute, subject to modification or repeal by the General Assembly. 

The action of the New York legislature, though less repre- 
hensible, was liable to this serious objection, — it assumed, being 
itself the creature of the Constitution, to transfer the right of suf- 
frage — the most elementary of all political functions — from 
those to whom that instrument had confined it, to persons either 
expressly or impliedly excluded by it from the electoral circle. 

The same observation is applicable to the action of the Rhode 
Island General Assembly, unless the fact that, under the Charter, 
the power belonged to it to fix the qualifications for suffrage, 
should be thought to bring the case under a different rule. 
Conceding that this is so, I shall only hazard the observation, 
that such a power in the legislature of changing the bases of the 
Constitution, upon particular emergencies, being of evil promise, 
and violating all legal analogies, to say nothing of the teachings 
of experience in relation to its probable consequences, the only 
safe course would doubtless be, to make such changes as are 
constitutionally permissible, as the growth of the Common- 
wealth requires them, and because it requires them, and not as 
concessions, long wrongfully withheld, and at last, against the 
spirit of the Constitution, yielded to discontent. 

1 Considerations on the Questions of the A doption of a Constitution and Ex- 
tension of Suffrage in Rhode Island, by E. R. Potter, p. 21. 



CHAPTER V. 

§ 267. The Convention having been called, our next inquiries 
relate to the general structure or constitution of the body, to its 
internal organization and to its modes of proceeding. 

The constitution of a Convention may be considered with 
reference, first, to its membership — the qualifications therefor — 
and, secondly, to the question of its subdivision into separate 
chambers, possessed of a mutual negative upon each other. 

1. The first question — Who may be members of a Con- 
vention? — receives an explicit answer in but one of our Consti- 
tutions, that of Kentucky, of 1850. Article XIL of that Con- 
stitution requires that they shall be " possessed of the same 
qualifications of a qualified elector." 

In none of the Acts calling Conventions, so far as I have been 
able to discover, have the qualifications of delegates been speci- 
fied, except in the following cases : — The New York Conven- 
tion Act of 1821, made eligible as delegates all persons entitled 
by that law to vote for delegates ; the North Carolina Conven- 
tion Act of 1835, all free white men, of the age of twenty-one 
years, one year resident in the State, and possessed of the free- 
hold quafifications required of a member of the House of Com- 
mons under the existing Constitution ; the Pennsylvania Con- 
vention Act of 1837, " no delegate to represent any other district 
than that in which he shall have resided for one whole year next 
preceding the election ; " the New Hampshire Convention Act 
of 1850, any person who by the laws of this State is a qualified 
voter in the town or district in which he may be elected ; the 
Ohio Convention Act of the same year, all persons having the 
qualifications of an elector; the Delaware Convention Act of 
1852, any white male citizen of the State of the age of twenty- 
four years or upwards ; the Iowa Convention Act of 1857, all 
persons having the qualifications of a senator in the General 
Assembly ; the Maryland Convention Act of 1864, all persons 



262 WHO ARE ELIGIBLE TO CONVENTIONS? 

having the qualifications for a seat in the House of Delegates ; 
and the Acts of Congress authorizing the Nevada and Nebraska 
Conventions of 1864, all persons qualified by law to vote for 
representatives to the General Assembly of those Territories 
respectively. 

§ 268. In the Constitutions of several of the States, now in force, 
after making provision for calling Conventions under certain 
circumstances, the delegates thereto are required to be " chosen 
in the same manner, at the same places, and at the same time," 
as the representatives to the General Assembly, and the same or 
equivalent phraseology is found in many of the Acts of the State 
legislatures by which Conventions are called. So, also, in the 
enabling Acts passed by Congress, authorizing Conventions in 
Territories, there is commonly inserted a provision requiring the 
elections to be " conducted in the same manner as is prescribed 
by the laws of the Territory regulating elections therein for 
members of the House of Representatives." To these add, what 
is believed to be the fact, that in no case has any person ever 
been elected as a delegate to a Convention in the United States 
who was not a citizen-elector, resident in the State where the 
Convention was called, and the case, upon one side, is presented. 
If it does not establish the fact, that, as a general rule, no one, 
not possessing at least the general qualifications of an elector, is 
eligible to a Convention, it certainly raises a strong implication 
to that effect. 

§ 269. Against these facts should be set off" the declarations 
of certain authorities, in and out of Conventions, laying down 
an opposite rule, according to which the electors may choose 
whom they will to represent them in those bodies, whether quali- 
fied electors or not, even if non-residents of the State, and that 
whether restricted by the Act calling the Convention or not. 
Thus, the opinion has been expressed, that "the delegates may 
be individuals from any class, including the ministers of religion, 
the Governor, and other public functionaries, and the judges " ^ — 
persons, by many of our Constitutions, excluded from occupying 
seats in our General Assemblies, or from holding any other places 
of honor or profit. So, in the Pennsylvania Convention of 1837, 
it was intimated that, had the county of Philadelphia elected 
Albert Gallatin, a citizen and resident of New York, as its dele- 
1 Hinton's Hist. U. S., Vol. II. pp. 324-327. 



SHOULD CONVENTIONS CONSIST OF TWO CHAMBERS? 263 

gate, it would have been competent for that body to admit him 
to a seat, in the face of the Act of the legislature, above referred 
to, localizing the elections of its members.^ Those who advo- 
cate this freedom of election might, perhaps, with some plausi- 
bility claim, that, inasmuch as the function of a Convention is 
to recommend, not to enact, constitutional changes, free scope 
should be allowed to the electors to employ the best talent they 
can find, wholly without restriction ; and that what reason thus 
indicates to be expedient, the fact that most of our laws and 
Constitutions are wholly silent as to who may, and who may 
not be members of Conventions, demonstrates with sujfficient 
clearness to be according to the intent of those who framed 
them. 

§ 270. 2. In relation to the question of subdividing Conven- 
tions into two chambers, with a check upon each other, after the 
plan of our legislative Assemblies, it is not my purpose to en- 
large. So long as those bodies confine themselves to their 
legitimate function, of advisers, and abstain from acts of legis- 
lation, which belong to another department, the legislature, their 
present constitution, in a single chamber, is without danger, 
and, having the merit of simplicity, is doubtless preferable to 
any other. Such has uniformly been the constitution exhibited 
by them thus far. The idea, however, has been advanced, that 
a Convention of two houses would better answer its constitu- 
tional purpose than of one. In the New York Convention of 
1846, Mr. Ruggles introduced a resolution recommending, that 
all future Conventions called in that State should consist of two 
chambers. It was received with little favor, however, and was 
not pressed. In 1857, the Convention of Minnesota realized as 
a fact the constitution which had only been elsewhere imagined. 
The two political parties in the Convention, Republicans and 
Democrats, disagreeing as to the organization of the body, 
formed separate Conventions, which ran parallel courses, each 
claiming to be the only legitimate Convention. Two Constitu- 
tions were reported, and it seemed that the people were to be 
embarrassed by the necessity of choosing between them, when, 
toward the close of their respective sessions, a conference was 
had between the two bodies, and a single Constitution reported 
to, and adopted by them both. It seems clear, that this mode 
1 Deb. Pa. Com., 1837, Vol. I. p. 400. 



264 INTERNAL ORGANIZATION OF CONVENTIONS. 

of organizing has decided advantages. A Constitution, accept- 
able to all political parties in a State, must be free from partisan 
legislation ; must contain, as it ought, only measures whose pol- 
icy or expediency had been thoroughly settled in the public mind. 

§ 271. By a very remarkable exhibition of moderation, what, 
in Minnesota, resulted from disagreement, was in New Jersey, 
in 1844, substantially effected by amicable arrangement between 
political parties. Those parties did not separate after assem- 
bling in Convention, but, by aYi arrangement recommended by 
the members of the legislature, in concurrence with influential 
persons throughout the State, delegates were elected to the Con- 
vention from all the districts, save one, by each of the parties.^ 
It is impossible to commend too highly an example which must 
have sprung solely from a view to the public good. Where all 
parties were, in point of numbers, on a par, it could be only 
by combinations, not reasonably to be expected, that measures 
having a party bearing could be carried in Convention. Al- 
though it is not so stated, the inference is, that the delegates 
elected sat together in a single chamber. 

§ 272. I pass now to consider the internal organization of 
Conventions. 

The call under which a Convention assembles, may contain 
specific directions in reference to its organization, in which case, 
it will be the duty of the body to follow those directions to the 
letter. As the case has never occurred in which it has been 
attempted to prescribe more than a few of the most important 
particulars, and as no attempt is likely to be made to hamper 
such a body by minute regulations, the subject will be dismissed 
without further comment. The alternative is, that the Act call- 
ing the Convention should be silent as to the points indicated. 
This case embraces most of the Conventions thus far held in 
the United States, the call generally confining itself to the time 
and mode of electing the delegates, the qualifications of the 
electors, the time of assembling of the Convention, and such 
other particulars as either fall more naturally within the scope 
of legislative authority, or as require to be definitely settled 
before the body meets. Such, on the other hand, as are inci- 
dental to the exercise of the functions of the Convention, as 
such, are commonly left to the discretion of the body itself. 
1 Mulford, Hist. N. J., pp. 495, 496. 



THE CALL TO ORDER. 265 

§ 273. The usual mode of initiating the organization of a 
Convention, is for some member elect to call the body to order 
and move the election of a presiding officer 'pro tempore. In 
nearly all the Conventions whose proceedings have been pub- 
lished, such has been the course pursued.^ In a few instances, 
the body has been called to order by some person who was at 
once a member of the Convention and an officer of the existing 
government. Thus, in Massachusetts, in 1820, the Convention 
was called to order by the Lieutenant-Governor, William Phil- 
lips, who was also member for the town of Boston. The Cali- 
fornia Convention, held in 1849, and that formed by the Demo- 
cratic members of the Minnesota Convention of 1857, were 
respectively called to order by the Secretaries of the Territorial 
governments, sitting as members of the Conventions. Except 
in the case last named, in which there was a split in the Conven- 
tion, no stress, so far as I am aware, has ever been laid on the 
fact, that the Convention had or had not been called to order by 
an official person. In that case, there was a strife to establish 
for the several fragments into which the body was divided, a 
character as the legitimate Convention. The Democratic mem- 
bers, who had receded from the hall where the Convention was 
to assemble, on finding it occupied by the Republicans, by whom 
an organization had been, as was charged, prematurely effected, 
claimed for their Convention, subsequently organized in another 
place, a higher legitimacy, because opened by the Secretary of 
the Territory. The Act under which the Convention met, how- 
ever, contained no directions requiring the Secretary, as such, to 
attend the Convention. Being a member, his action, therefore, 
must be presumed to have been in that capacity, and not in that 
of Territorial officer.^ 

1 This was the course in Illinois, in 1847 and 1862; in Kentucky, in 1849; 
in Ohio, in 1850; in the Republican Convention of Minnesota, in 1857 ; in Vir- 
ginia, in 1829 and 1850; in Wisconsin, in 1847 ; in Massachusetts, in 1853 ; in 
Pennsylvania, in 1837 ; in Iowa, in 1857 ; and in Louisiana, in 1844 and 1852. 
Some Convention Acts prescribe, that the Secretary of State shall attend the 
Convention to furnish a list of the members elect. Such was the case in New 
York, in 1821 and 1846; in Michigan, in 1850; and in Illinois, in 1847. In 
New York and Michigan, the Secretary read the list of members, and then some 
member moved the election of officers pro lem.^ after which the body was called 
to order. 

2 The disruption of this Convention was occasioned by the fact that the ena- 
bling Act had named no hour at which the Convention was to assemble. Moved 



266 OFFICERS OP THE CONVENTION, HOW CHOSEN. 

§ 274. The officers of a Convention are either temporary or 
permanent. In most Conventions, the first proceeding, after the 
call to order, has been the appointment of a president, a secre- 
tary or secretaries, a sergeant-at-arras, and occasionally some 
other officers, pro tempore. The mode of appointment has been 
uniformly by viva voce vote, as, at this stage of the organization, 
is proper and necessary. On the basis of this temporary organi- 
zation a permanent one is then effected. The permanent officers 
of a Convention are usually a president, one or more clerks or 
secretaries, sergeant-at-arms, door-keeper, and messengers.^ In 
a majority of cases these officers have been elected by ballot, 
either with or without a requisition to that effect in the call of 
the Convention. In about one-third of the cases, however, they 
have been elected viva voce, and in a few, the President has been 
elected by ballot, and the inferior officers by viva voce vote, or 
by resolution.^ Beside the permanent officers above named, 
in most Conventions there have also been appointed a chaplain or 
chaplains, a printer, and one or more reporters. As to the first 
of these officers, the chaplain, the practice is not uniform. In a 
few instances, a single person has been elected to that office for 
the session ; but in far the greater number, a resolution has been 
adopted early in the Convention, inviting the clergy of the dif- 
ferent denominations, resident in the places where the Conven- 
tions were sitting, to officiate as chaplains in rotation.^ So, in 

by alleged threats, that the Democratic members would seize the hall of the 
Convention at an early hour and forestall the organization, the Republican mem- 
bers in a body took possession of it during the night preceding, and held it until 
the usual hour for organizing such bodies arrived. 

1 In all the Conventions in Massachusetts, the first officer elected was a secre- 
tary ; and, in that of 1853, it was strongly contended that such a course was the 
most proper one. Deh. Mass. Conv., 1853, Vol. I. p. 9. 

2 They were elected by ballot, in New York, in 1821 and 1846 ; in Virginia, 
in 1829; in Massachusetts, in 1820 and 1853; in Pennsylvania, in 1789; in 
Illinois, in 1847 ; California, in 1849 ; in Michigan, in 1850 ; in Louisiana, in 1844 ; 
in Ohio, in 1850; and in Wisconsin, in 1847; and by viva voce vote in Illinois, 
in 1862 ; in Kentucky, in 1849; iu Indiana, in 1850 ; in Minnesota (Republican 
Convention), in 1857; in Pennsylvania, in 1837; in Louisiana, in 1852; and 
in Iowa, in 1857. In the Minnesota Democratic Convention, in 1857, they 
were elected by resolution. 

3 A chaplain was elected in the following Conventions ; both those of Min- 
nesota, in 1857; those of Massachusetts in 1820 and 1853, and in that of Mary- 
land, in 1850; while in the following, the resident clergy officiated as stated; 
those of Kentucky, 1849; Illinois, 1847 and 1862; California, 1849 ; New York, 



REPORTS OF THE PROCEEDINGS OF CONVENTIONS. 267 

regard to printer, the practice has been various. In a few cases 
the Act calling the Convention has required or authorized it, 
when convened, to elect a printer, either unconditionally, or upon 
certain prescribed terms.^ In much the greater proportion of 
the cases, however, the enabling Acts have been silent on the 
subject, and those bodies have elected such persons, and on such 
terms, as they thought best. In two or three instances, the 
printer so selected has been the official printer of the State or 
Territory. The Act calling the Michigan Convention of 1850, 
required the State printer to do the work of the Convention, and 
that body acquiesced in the provisions of the Act. In the Illi- 
nois Convention of 1862, the same spirit was not manifested. 
The Act under which it assembled, made it the duty of the 
Secretary of State " to cause such printing to be done as the 
Convention shall from time to time require." Although this 
Act was not couched, perhaps, in such terms as to leave the 
duty of the Convention free from doubt, since it seemed to be 
optional with that body to make or not, as it should see fit, 
requisitions upon the secretary for printing; still it is, on the 
whole, clear enough, that the legislature intended to put the 
printing of the Convention into the hands of a public officer of 
the State. The Convention evidently so interpreted the Act, 
for, in the discussions which followed the motion to elect a prin- 
ter, it was assumed that such was the intention of the legislature. 
The Convention took its stand upon a question of power, con- 
tending that the legislature was incompetent to fetter the discre- 
tion of that body in the appointment of its own officers. It 
consequently refused to obey the Act as thus interpreted, and 
elected a printer of its own. 

§ 275. In Conventions, some provisions have generally, and 
very properly, been made for preserving, for general circulation, 
reports of their debates and proceedings. In all, or nearly all, 

1821 and 1846; Michigan, Ohio, and Indiana, in 1850; Virginia, 1829 and 
1850; Wisconsin, 1847; Pennsylvania, 1837; Iowa, 1857; and Louisiana, 1844 
and 1852. In Massachusetts, in 1779, the clergy who were members of the Con- 
vention officiated. 

1 Such was the case in IlUnois, in 1847 ; Kentucky, in 1849; and Iowa, in 
1857 ; in which no terms were prescribed ; and in New York in 1846, and Mich- 
igan and Ohio in 1850, in the first two of which the Conventions were limited 
in the amount to be paid to the rate paid for the legislative printing, and in the 
latter, to a designated sum. 



268 CREDENTIALS AND LIST OP MEMBERS. 

their journals have been published. In a much smaller number, 
have been published full reports of their debates. In the latter 
cases, the Conventions have commonly elected official reporters 
among their regular officers, without any special authorization 
of the legislature calling them.^ In a considerable number, no 
official reporter has been appointed, but the reports published 
have been the work of private enterprise.^ In the case of the 
Indiana Convention of 1850, the Act calling it had required the 
Governor to engage the services of a stenographer for the Con- 
vention. This was done, and the Convention received and 
employed him ; though not without questioning the right of 
the legislature to dictate to that body who should act as its 
officers. Of the Ohio Convention of 1850, the reporter was 
appointed, before the Convention assembled, by the State legis- 
lature. On his presenting himself to the Convention, however, 
a similar discussion arose, as to the right of appointment, but 
the Convention acquiesced in the action of the legislature. The 
Act calling the Pennsylvania Convention of 1837, specially au- 
thorized that body to engage the services of a competent ste- 
nographer, a course probably wiser than any other, as avoiding 
discussion. 

§ 276. It is obvious that in a numerous assembly, convened 
as a result of popular elections, some system is necessary for 
determining who have been elected, and are consequently en- 
titled to take part in its deliberations. In the various Conven- 
tions, the practice on this point has been far from uniform, 
though there is apparent in them, after all, a sort of regularity. 
In a considerable proportion of them, generally the same in 
whose organization the initial step had been the appointment of 
officers pro tempore^ a list of the members, furnished by the Sec- 
retary of State or other officer of the existing government, to 
whom the official returns of the elections had been made, or 
drawn up by the officers of the Convention themselves, has been 
called over immediately after the temporary organization, and 

1 This was the case in the following Conventions : Massachusetts, 1853 ; Wis- 
consin, 1847; Kentucky, 1849; Missouri, 1820; Michigan, 1850; Iowa and the 
two Minnesota Conventions, 1857; California, 1849 ; Louisiana, 1844 and 1852; 
and Illinois, 1862. 

2 In this class are the Conventions of Massachusetts, 1820 ; New York, 1821 
and 1846 ; Virginia, 1829 ; and Illinois, 1847. 



SHOULD MEMBERS OF CONVENTIONS BE SWORN? 269 

the credentials of the members have thereupon been presented 
and approved.^ The list having thus been verified, the Conven- 
tion has been prepared to enter upon business. In some cases, 
the list of delegates has been presented by some officer of the 
government, and read in the first instance, before the tempo- 
rary organization has been effected.^ In others, after the tem- 
porary organization, the first business transacted has been the 
raising of a committee on credentials, upon whose report the 
list of members for future use has been founded.^ 

In those Conventions, on the other hand, in which no tempo- 
rary organization has been made, the practice has been equally 
varied. In Pennsylvania in 1776 and 1789, in New York in 
1821, and in Indiana in 1850, a list of the delegates elected, fur- 
nished by the Secretary of State or other officer of the gov- 
ernment, was read in the first instance, before any attempt at 
organization. In Maryland in 1776, and in Massachusetts in 
1820 and 1853, a committee on credentials was raised, in the 
first case after, but in the two Massachusetts Conventions before, 
the permanent organization ; and in one case, that of the Vir- 
ginia Convention of 1829, the roll was not called or verified 
until after the completion of the permanent organization. 

§ 277. The question whether the members of a Convention 
should be sworn before entering upon their duties, has been vari- 
ously answered in different Conventions. Of the whole number 
whose proceedings have been accessible to me, about one half 
only have administered an oath. These were the following 
Conventions : those of Pennsylvania, 1776 ; North Carolina, 
1835 ; New Jersey, 1844 ; Missouri, 1845 ; Illinois, 1847 and 
1862 ; California and Kentucky, 1849 ; Ohio and Indiana, 1850 ; 
Iowa and the two Minnesota Conventions, in 1857 ; and Mary- 
land, in 1864. On the other hand, an oath was not adminis- 
tered in the following Conventions : Maryland, 1776 and 1850 ; 
Tennessee, 1796 and 1834 ; Virginia, 1829 and 1850 ; Pennsyl- 
vania, 1789 and 1837 ; New York, 1821 and 1846 ; Massachu- 

1 This was done in Illinois in 1847 and 1862, Kentucky in 1849, Ohio and 
"Virginia in 1850, California in 1849, Pennsylvania in 1837, Iowa in 1857, and 
Louisiana in 1852. 

2 These were the Conventions of New York in 1846, and Michigan in 1850. 

3 In Minnesota in 1857 (both Conventions), in Wisconsin in 1847, in Iowa 
in 1857, and in Louisiana in 1844. c 



270 SHOULD MEMBERS OP CONVENTIONS BE SWORN? 

setts, 1779, 1821, and 1853 ; Michigan, 1850 ; Wisconsin, 1847 ; 
and Louisiana, 1812, 1844, and 1852. In those Conventions in 
which 'an oath has been administered, the most common form 
has been substantially that used by the Illinois Convention of 
1847, which was as follows : " You do solemnly swear, that you 
will support the Constitution of the United States, and that 
you will faithfully discharge your duty as delegates to this Con- 
vention, for the purpose of revising and amending the Constitu- 
tion of the State of Illinois." That administered in Maryland, 
in 1864, beside the foregoing, contained an oath of allegiance 
to the government of the United States. A more restricted 
form was employed in the California Convention of 1849, and 
in the Minnesota Republican Convention of 1857, namely : 
" You do solemnly swear that you will support the Constitution 
of the United States." 

§ 278. In several of the Conventions in which an oath has 
been administered, opposition has been made either to taking 
any oath at all, or to taking one in the form proposed by the 
Convention, or prescribed by the Act under which it assembled. 

1. It has been urged that no oath was necessary or proper ; 
that if the Convention was a mere committee, with powers 
only of proposing amendments, it was a useless ceremony to 
bind it by oaths to do or not to do acts which it could do only 
on the hypothesis that it possessed a power of self-direction 
inconsistent with its supposed character ; that it was even dan- 
gerous so to do, as involving an admission, that, without an oath 
or some positive prohibition, it would have power, and perhaps 
be at liberty, to act definitively. On the other hand, if the Con- 
vention was an embodiment of the sovereignty of the State or 
nation, empowered to pull down and reconstruct the edifice of 
government, as freely as the sovereign could itself do, were it 
possible for it to act in person and directly, then an oath would 
be doubly futile, since it could not fetter a power that was prac- 
tically unlimited and uncontrollable. 

In reply to this, however, it has been forcibly urged that, if 
not necessary, it is proper that a body like a Convention, in- 
trusted with important public duties, should deliberate under 
the obligation of an oath ; that it could do no harm, and might 
operate to restrain members from doing, for selfish or partisan 
ends, that by which the interest of the people at large might be 



FORM OF THE OATH TO BE ADMINISTERED. 271 

jeopardized. This would become more apparent, when it was 
considered that an oath derives its efficacy more from its ten- 
dency to remind the taker of his obligation to a higher power, 
than from any liability the taking of it may impose upon him 
to punishment for perjury. 

§ 279. 2. What form of oath should be used has, however, 
been more frequently the subject of dispute than whether any 
oath was proper. In Conventions to frame State Constitutions, 
assuming that an oath is to be administered at all, it is gener- 
ally conceded to be proper that it should embrace an undertak- 
ing to be faithful and obedient to the Constitution of the United 
States. This could not well be contested, since the State Con- 
stitutions are, by the terms of the Federal charter, to be valid 
only when conformable to its provisions. It is also generally 
admitted to be proper, if an oath be taken at all, that the mem- 
bers should be sworn honestly and faithfully to perform their 
duties as members of the Convention. A question of more 
difficulty is, whether the oath should contain a clause to sup- 
port the Constitution of the State. This question has been 
raised in several Conventions, and has been uniformly decided 
in the negative.^ The reasonings of the opposite parties upon 
this question have been based on their respective conceptions 
of the nature and powers of a Convention. Those who have 
opposed taking the oath have done so on the ground, that to do 
so would be inconsistent with their duties as members of a 
Convention ; that they were deputed by the sovereign society to 
pull to pieces, or, as some have expressed it, " to trample under 
their feet," the existing Constitution, and to build up instead of 
it a new one ; that to take an oath to support the Constitution 
of the State, would be to swear that they would not perform 
the very duty for which they were appointed. 

§ 280. On the other hand, it has been contended, that it is no 
part of the duty of a Convention to pull to pieces the existing 
Constitution of the State ; that by the true theory of such a 
body, it is advisory merely ; having power to overhaul the Con- 
stitution, search out its defects, and recommend such changes 

1 It arose in the Louisiana Convention of 1844, in the Ohio Convention of 
1850, the Iowa Convention of 1857, and the Illinois Convention of 1862. In 
the last case the oath to support the Constitution of the State had been pre- 
scribed by the Act calling the Convention. 



272 FORM OF THE OATH TO BE ADMINISTERED. 

as should in its view promise to remedy them, but to conclude 
nothing; that in this view of a Convention, the Constitution is 
in full vigor and operation as much when that body, having 
completed its task, should suffer dissolution, as when it first 
assembled ; that, in the mean time, if unrestrained, a Conven- 
tion might, under a claim of power to exercise sovereign rights, 
"trample under its feet" every one of those liberties secured 
against ordinary usurpation by the Bill of Rights ; it might 
suspend the writ of Habeas Corpus, raise a standing army and 
quarter it in peace upon the citizens without their consent, de- 
stroy the liberty of the press, declare those who should offend 
its dignity to be guilty of felony and punish them, by its own 
hands, with death. Surely, if such usurpations are possible, no 
matter what the theory of their powers may be. Conventions 
ought to be placed under all the restraints that can be devised 
to prevent them. Undoubtedly one of the most powerful of 
these is an oath to support the Constitution, in which are bound 
up these liberties, and which therefore must first be infringed 
before those liberties can be violated. 

§ 281. In the case of two Conventions, those of North Caro- 
lina, in 1835, and Illinois, in 1862, the Acts under which those 
bodies assembled prescribed the form of the oath to be taken. 
In the former, great opposition having existed to the call of a 
Convention, on the part of a powerful minority in the State 
legislature, in the Act finally passed, restrictions were impo&ed 
upon the Convention as to the extent and nature of the amend- 
ments it should propose, requiring it to report amendments upon 
three points, and giving to it discretionary authority to propose 
others upon nine points particularly described in the Act. The 
Act then proceeded to require that no delegate should be per- 
mitted to take his seat in Convention until he should have taken 
and subscribed an oath or affirmation as follows : " I, A. B., do 
solemnly swear (or affirm, as the case may be) that I will not 
directly or indirectly evade or disregard the duties enjoined or 
the limits imposed to this Convention by the people of North 
Carolina, as set forth in the Act of the General Assembly, passed 
in 1834, entitled '■ An Act to amend the Constitution of the 
State of North Carolina,' which Act was ratified by the peo- 
ple." 

To the taking of this oath, objection was raised in the Con- 



FORM OF THE OATH TO BE ADMINISTERED. 273 

vention, on the ground, that the legislature had no right to im- 
pose it, some being of the opinion that, if taken, it would bind 
the members to concur in all the amendments proposed. Others 
thought it would merely restrict the Convention to the consid- 
eration of those amendments, without at all prescribing the 
view it should adopt respecting them. Others still raised the 
question, what would be the effect should the Convention tran- 
scend the limits imposed, and submit to the people other amend- 
ments, which should be adopted, citing the case of the Federal 
Convention, which disregarded the limitations imposed by the 
States, and instead of a revised Confederation recommended a 
national government. At length it was pointed out, that there 
was absolutely no escape from taking the oath ; that by the 
terms of the Act no delegate should be permitted to take his 
seat in the Convention until he had taken the prescribed oath. 
It was a condition precedent to their organization, and if it was 
objected, that the legislature had transcended its authority in 
imposing the condition, it might be answered that the Act rested 
not alone on the authority of the legislature, but on that of the 
people to whom it had been submitted. This view prevailed, 
and the oath was taken by all the members.^ 

§ 282. In the Illinois case, the Act calling the Convention had 
prescribed, that the members, before entering upon their duties, 
should " each take an oath to support the Constitution of the 
United States, and of this State, and to faithfully discharge his 
duties as a member of said Convention." The taking of this 
oath was strenuously opposed, on the two grounds, before men- 
tioned, that the legislature had no power to impose it, and that 
the clause relating to the Constitution of the State was incon- 
sistent with the general tenor of the Act calling the body to- 
gether as a Convention. It is unnecessary to rehearse the argu- 
ments in support of these positions, or those by which it was 
attempted to refute them. The question of power in the legis- 
lature to bind a Convention in such a case, will come up for 
consideration in a subsequent chapter. As before stated, the 
result of the discussion was, that the Illinois Convention, by a 
formal vote, refused to obey the Act under which it assembled, in 
regard to the form of the oath to be taken by its members. The 
oath actually administered was substantially the same as that 

I Deh. N. C. Conv. 1835, pp. 4-8. 
18 



274 FORM OP THE OATH TO BE ADMINISTERED. 

taken by the Illinois Convention of 1847, and differed from that 
prescribed mainly in omitting the words, " and of this State," 
upon which the debate arose. 

§ 283. Upon the question involved in the Illinois case, I sha'' 
make but a single observation, and that in relation to the alleged 
incongruity between the undertaking contained in the oath, and 
the actual business of the Convention. 

When a member of a Convention swears to support the Con- 
stitution of his State, what Constitution is it he swears to sup- 
port ? Is it the written instrument — the Constitution considered 
as evidence of an objective fact — or the objective fact itself — 
the actual Constitution ? Substantially, the latter only. He 
calls God to witness that, while inspecting the written Consti- 
tution, to see if it adequately expresses the real Constitution, to 
which the Commonwealth has grown since the last revision, he 
will not violate, but will protect and defend, those essential rights, 
and respect and conform to those particular limitations and ad- 
justments, which make up that real Constitution ; though he 
doubtless adds that, pending the utterance of the fiat, by which 
obsolete or inadequate provisions of the written Constitution are 
stricken from its pages, he will respect them also as the funda- 
mental law of the land. But, suppose every copy of the Con- 
stitution, considered as an instrument of evidence, were destroyed, 
and the memory of its contents utterly blotted out, the real Con- 
stitution would remain, the Constitution to which the oath mainly 
refers. So that, if we were to admit that it is the duty of a Con- 
vention to eradicate from the written Constitution, and to tram- 
ple under its feet such part thereof as the Commonwealth has 
outgrown, the oath would still refer to that greater part which 
is living and operative. 

The charge, then, that there is any inconsistency between the 
oath supposed, and the function of a member of a Convention, 
however broad the powers of the latter be conceived to be, is a 
gross absurdity, resulting from confusion of ideas as to the real 
meaning of the term Constitution. Much more is it an absurdity 
in view of the fact, that a Convention is a body of very narrow 
powers, charged only with pointing out defects and recommend- 
ing remedies, but with a right, ordinarily, to conclude nothing. 

§ 284. Immediately after the permanent organization, there is 
generally appointed a committee to report a body of rules for 



EULES OF ORDER. 275 

the government of the Convention, or to facilitate the transac- 
tion of its business. Pending the preparation of this report, in 
about half the cases, a resolution has been carried to adopt for 
their government, for the time being, the rules of the last House 
of Representatives of the State, so far as applicable. In a few 
instances, the rules of the last Convention have been temporarily 
put in force, and in one case, that of California, in 1849, those 
laid down in Jefferson's " Manual of Parliamentary Law." As 
to the character of the rules adopted, it may be said, in general, 
that they are, in substance, the same, so far as they are strictly 
rules of order, and not rules determining the modes of proceed- 
ing, as those by which our legislatures are commonly governed. 
The differences are such as result either from the special and 
limited character of Conventions, as compared with legislative 
Assemblies, or from the relative importance of their respective 
duties. In the former, for instance, there is not, probably, a 
necessity for the same safeguards against haste, surprise, or 
inadvertence, as in the latter, inasmuch as the volume of the laws 
to be passed upon is smaller, or against the combinations of 
interested parties, as the legislation performed by them is less 
near to the interests or the party prejudices of their members or 
others. Thus, it is sometimes provided, that clauses may be 
adopted as parts of the proposed Constitution, upon a less num- 
ber of readings than would be safe, or than is usual, in case of 
ordinary laws. On the other hand, by reason of the vastly 
greater importance of the subjects of deliberation in Conven- 
tions, the rules often grant a much greater facility for reconsid- 
eration than in legislative Assemblies. Thus, in the Massachu- 
setts Convention of 1853, on motion of the Hon. Henry Wilson, 
the ordinary rule requiring a motion for reconsideration to be 
made by one who voted with the majority, was so modified, as 
to permit any member to make it, whether he had voted with the 
majority or not. Greater latitude is, also, in many cases, allowed, 
as to the time within which that motion must be made.i 

1 The relaxation of the rule as to time seems to be much more reasonable 
than as to the mover. As was well said by Mr. Quincy, in the Massachusetts 
Convention of 1820, it is proper, before allowing a reconsideration, to require 
some evidence that a reconsideration would lead to a different result from that 
already attained, else it would be a mere loss of time ; and a motion by one of 
the majority to reconsider, is proper evidence of that fact. The Convention of 
1820, after some discussion, refused to modify the general rule as to reconsider- 
ations. 



276 MODE OP PROCEEDING. 

§ 285. The Convention having organized, by the appointment 
of officers and the adoption of rules of order, and, therefore, 
being ready to proceed to business, a question of great perplexity 
and of great importance thereupon arises : " What shall be the 
mode of proceeding ? — a question, in short, of method. 

This question involves two subordinate ones, which I will 
take up in their order, namely, first, What arrangements, if any, 
shall be made whereby the labor of the Convention may be fa- 
cilitated by subdivision ? — a question properly of instrumental- 
ities ; and, secondly. In what manner shall those instrumen- 
talities prosecute the task apportioned to them ? 

First. Of the first question, two practical solutions may be 
given. 

1. The Convention may enter upon its task — the framing or 
the amending of a Constitution — directly, in Convention, as it 
is called — that is, without resolving itself into a committee or 
committees. In this mode of proceeding the course of business 
would be, to take up the existing Constitution of the State, or 
that of some other State, or some model or project presented by 
individuals, subject it to a round of discussions in Convention, 
and finally to adopt it as the proposed Constitution, or as an 
amendment thereto. The disadvantages attending this mode 
are so patent and so numerous, that it is doubtful if it would 
ever be adopted, as it is believed that it never has been adopted. 
The leading objection to it is, that the deliberations of any nu- 
merous assembly, which should adopt it, would be at once pro- 
tracted and fruitless. It is obvious that every member might 
present his scheme, and rightfully claim for it regular and or- 
derly consideration ; and, in the absence of the concert of action 
secured by committees, a great number of schemes, turning out 
ultimately to be futile or inadequate, would undergo protracted 
discussion, which, with a proper mode of proceeding, would be 
nipped in the bud. Besides, the immense labor of maturing, 
in all its details, a large number of connected fundamental Acts, 
would have to be done, according to this mode, by the entire 
Convention — an arrangement, for business efficiency, to be 
equalled in absurdity only by a military plan, which should re- 
quire to be detailed for every duty of camp or field, however 
trivial, the entire force of all arms in the command. 

§ 286. 2. The alternative is, the employment of one or more 



MODE OF PROCEEDING. 277 

committees to prepare and report a Constitution, or parts there- 
of, or amendments thereto, for the consideration of the Conven- 
tion. And, as intimated above, this course has been adopted 
with perfect unanimity by the Conventions to whose proceed- 
ings I have had access. Upon one point, however, there has 
been very great divergence of opinion, and that is, in relation to 
the number, and, if more than one, the mode of appointment of 
those committees. 

§ 287. (a). As to the number of committees, a very common 
opinion, when the subject is first discussed, is that there should be, 
for convenience and despatch of business, but a single commit- 
tee — the committee of the whole. Those who advocate this 
mode of proceeding claim for it simplicity and directness as well 
as efficiency, and they usually propose that the Constitution 
which is to be taken as a model for imitation or the basis for 
amendments, should be read; that each member should there- 
upon be allowed perfect freedom of discussion ; and, when it 
has been determined what the views of the body are, that the 
committee should report, and the whole matter be at once, as it 
could readily be, concluded. At the same time it is commonly 
admitted, that this course would be impracticable in an ordinary 
legislature, by reason of the complexity and multifariousness of 
the subjects brought up for its action ; but this is supposed not 
to hold true of a Convention, because, it is said, its business is 
relatively simple and homogeneous. Hence, in almost every 
Convention ever held, so far as I am aware, there have been 
advocates of a reference of its whole business, in the first in- 
stance, to a committee of the whole. 

§ 288. (b.) Another plan, adopted in a few cases in Conven- 
tions engaged in framing first Constitutions, is to appoint a 
single select committee of limited numbers, to digest from such 
materials as may be at hand, the models of political amateurs 
or the Constitutions of neighboring States, a draft of a Consti- 
tution to be considered by the Convention. As this plan in- 
volves the necessity either for great haste on the part of the 
committee, or of much delay and inactivity on that of the Con- 
vention, pending the preparation of the report, it has been rarely 
employed. Of all the Conventions whose records have reached 
me, only ten have adopted this plan, namely, those of Mary- 
land, Virginia, New Jersey, and Pennsylvannia, held in 1776 ; 



278 MODE OP PROCEEDING. 

those of New York and Vermont, held in 1777 ; those of Mas- 
sachusetts, held in 1778 and 1779 ; that of Tennessee, held in 
1796 ; and that of California, held in 1849. 

§ 289. (c.) A third mode of proceeding by the use of com- 
mittees, is for the Convention to apportion the work to be done 
among several committees, giving to each an article or other 
definite portion of the existing Constitution, embracing a dis- 
tinct topic, as the Executive, Legislative, or Judicial department, 
the Finances, Education, Bill of Rights, and the like ; each com- 
mittee to report in the form of articles and sections such provis- 
ions as it shall deem necessary. 

These are evidently all the modes of which the subject is 
capable ; and the one last described is that which has very gen- 
erally been adopted. The mode of proceeding by a committee 
of the whole, has been examined to some extent already ; but it 
may be proper here to inquire with some particularity into the 
merits of that mode, as compared with that last described, by 
numerous committees — a question which has given rise to 
much discussion in several Conventions, and is likely to be again 
discussed hereafter. 

§ 290. In favor of proceeding in committee of the whole, it 
has been urged, that if it be an object to save time or to secure 
the exercise of all the talent in the Convention, the best course 
is to make use of that committee ; that, if a Constitution is to be 
adequately discussed, the appointment of several committees, in 
the first instance, to report upon distinct portions of it, would 
increase rather than diminish the time occupied in the session, 
since, while the reports were being prepared, the Convention 
would be forced to remain idle ; and the several reports being 
likely to be incongruous and more or less unacceptable to the 
Convention, every part of them would need to be amended and 
brought into harmony with other parts and with the sentiments 
of the majority in the body ; that the wisdom and experience of 
the entire Convention are at least equal to those of any com- 
mittee chosen therefrom ; that it is the proper province of the 
Convention, as it is of a legislature, to settle principles, and of 
committees to arrange details ; hence, it is evident that, when 
the members of a Convention have learned, from a full and free 
discussion in committee of the whole, unembarrassed by the 
rules that must be enforced in Convention, the principles 



MODE OF PROCEEDING. 279 

deemed by the collective body necessary to be embodied in the 
Constitution, they would be enabled, even if afterwards subdi- 
vided into committees, to act with greater expedition and with 
greater intelligence ; that it is also no slight recommendation of 
the committee of the whole, that on account of its freedom from 
the stringent rules that hamper the Convention, and of the prac- 
tice which usually prevails of not reporting fully, if at all, the 
speeches made in that committee, men unused to public debate 
are enticed from their benches, and encouraged to contribute 
their wisdom to the common stock ; that it is also well not to 
forget, as one inducement to proceed in committee of the whole, 
that in all great legislative contests for freedom, the " Grand 
Committee," the committee of the whole, has been the instru- 
ment by which victory has been achieved ; that the crowning 
argument, however, in favor of this committee, is, that if re- 
course be had to the alternative, the appointment of one or 
more select committees, it is difficult, if not practically impos- 
sible, to withstand their influence, or to modify their reports. A 
select committee naturally comprises the best talent in the 
house. When a report is brought in by it, pride of opinion 
leads it to defend its offspring, and this its skill and experience 
generally enable it to do successfully. In a free and unre- 
ported debate, however, in committee of the whole, in which 
the Constitution is taken up and read section by section, com- 
mented upon, and amended, no such danger need be appre- 
hended. It is the opinion formally announced and published to 
the world, not the casual observation, unreported, and confess- 
edly not mature, that its author defends with vigor and per- 
tinacity. 

§ 291. The objections to proceeding in committee of the 
whole, on the other hand, resolve themselves mainly into a 
question of time. It is said, that if every member of a Con- 
vention is permitted to introduce his scheme of a Constitution, 
or his proposition of amendment, with liberty and encourage- 
ment to discuss each and all of them ad libitum, the task of 
framing a Constitution would be endless ; and not only so, but 
such a freedom of making and discussing propositions, instead 
of tending to harmonize the views of members, would intro- 
duce an element of division ; that what a single member pro- 
poses in committee of the whole, is the conclusion of a single 



280 MODE OF PEOCEEDING. 

mind, in which no other mind may agree ; whilst, on the other 
hand, the report of a committee of leading members is, at least, 
the consentaneous opinion of many minds, and probably will 
be that of the whole Convention when it has been brought by 
discussion to understand the subject ; that it is not always true 
that the wisdom or the experience of a Convention will be equal 
to that of a few of its leading minds, when we speak of it as 
embodying itself in action, whatever may be the case in relation 
to counsel ; in a Convention there will be, of course, a greater 
total of wisdom and talent than in any committee of it less 
than the whole ; but in those qualities a small committee, or a 
single person, may surpass the residue of the body, and yet it 
may go for nothing, unless the majority be very tractable. 
Hence, it is far better that the Convention should listen to the 
matured opinions of its few leading minds before committing 
itself by expressing its own ; that the committee of the whole 
undoubtedly has its eminent uses in a Convention, but it is 
rather after than before the reports of standing or special com- 
mittees have come in.^ 

§ 292. In favor of proceeding by committees charged severally 
with distinct parts of the Constitution, it has been urged, that 
it is the appropriate duty of a committee to prepare and lay out 
business for the deliberative body appointing it, and that neither 
a Convention nor a legislature can successfully proceed without 
them ; that they contribute essentially to simplify the complex 
matters referred to them, and thus to expedite the labors of the 
Convention ; that a committee chosen from a numerous assem- 
bly, and embracing a variety of talent and experience, will be 
able readily to prognosticate the determinations of the Conven- 
tion, by divining its wishes, which are quite likely to accord 
with those of any fairly selected committee ; that this consider- 
ation disposes of the objection, founded, perhaps, in part, upon 
the observed accordance between the votes of a numerous body 
and the recommendations of a committee of its leading mem- 
bers, namely, that committees are undesirable as possessing too 

1 For full discussions of the advantages and disadvantages of proceeding in 
committee of the ■whole, in the first instance, see the Debates in the following 
Conventions: Kentucky, 1849, pp. 39-54; New York, 1846, pp. 20-37; 
California, 1849, pp. 22-24 ; Michigan, 1850, pp. 20, 21 ; Ohio, 1850, pp. 47, 48 ; 
Pennsylvania, 1837, Vol. I. pp. 65, 66, 77, 95. 



MODE OF PROCEEDING. 281 

much influence, and as too much inclined to use that influence 
to secure the adoption of their own recommendations; that, 
thus viewed, committees do not so much dictate to those who 
appoint them, as discover to them in a few moments what is 
likely to be their own better judgment after floundering, perhaps, 
for weeks or months, in useless discussion ; that, at all events, 
there need be no fear of excessive influence in committees, for 
the reason that, when their reports come in, they are open to 
debate and amendment if not satisfactory, precisely like propo- 
sitions made by individual members, and so are likely to receive 
modification, if prejudiced or unreasonable. 

§ 293. The objections to the use of committees have already, 
in part, been suggested. It is contended, that their reports are 
likely to want consistency and congruity, when considered as 
parts of a whole ; that a Constitution built up by the action of 
a large number of committees is liable to lack provisions of essen- 
tial importance, through inadvertent omissions ; that however 
that may be, the labor of melting down into a consistent unit 
the heterogeneous reports of many committees, of discovering 
and supplying defects, and trimming down redundancies, is not 
less than that so much apprehended in committee of the whole ; 
but it is chiefly objected, that when such committees do the work, 
the Convention loses its power of control over it ; they will be 
organized in such a manner as that the talent and influence to 
be found in the Convention will be brought to bear upon partic- 
ular propositions, and that individuals will be powerless to coun- 
tervail them. 

§ 294. The reasonings in favor of the mode of proceeding in 
committee of the whole, without standing committees, of which I 
have given an outline, however plausible they seem, have failed, 
in every case, to convince the Conventions to which they were 
addressed, and those bodies have adopted, as have all the Con- 
ventions but one whose proceedings have reached me, the mode 
of proceeding by one or more standing committees, in preference 
to it. The Pennsylvania Convention of 1789, alone pursued the 
other plan, taking up the Constitution of 1776 in committee of 
the whole, and inquiring, during a large part of the session, 
" whether and wherein " it required alteration or amend ment.^ 

1 Jour. Pa. Conv. 1789, p. 143, et seq. In the North Carolina Convention of 
1835, Mr. Speight said he believed the Convention which framed the old Consti- 



282 MODE OF PROCEEDING. 

§ 295. The precedents established in the various Conventions 
in relation to the number of committees, and of members ap- 
portioned to each, have been far from uniform. With the 
exception of the ten Conventions already specified, in which a 
single committee was raised to draft and report a Constitution, 
and of the Pennsylvania Convention of 1789, in which, as I 
have just stated, the subject was taken up in committee of the 
whole, all the Conventions ever held, so far as I am advised, 
have appointed several committees, the least number being four, 
and the highest thirty-one.i The number of committees has 
commonly been determined by the views entertained by mem- 
bers as to the number of distinct parts of the Constitution, or 
separate topics embraced in it, needing revision. To the com- 
mittees charged with these, is commonly added a number of 
business committees, as on Printing for the Convention, and 
the like. In determining the number of members in each com- 
mittee, regard is generally had to the importance of the subjects 
committed, and the number of delegates in the body, the work 
being commonly so apportioned as to give each member some 
share in the committee-labor. 

§ 296. How the number of standing committees, and of the 
members of which each shall consist, shall be determined, has in 
many cases been the subject of vehement discussion. This has 
been the consequence mainly of jealousies between the friends 
and the opponents of the reforms contemplated in calling the 

tution, first proceeded in committee of the whole, and then made a reference of 
the diiferent subjects to their appropriate committees. Deh. N. C. Conv. 1835, 
p. 17. 

1 The Virginia Convention of 1829 had four Standing Committees, — one on 
each of the departments, Legislative, Executive, and Judicial, and one on the 
residue of the Constitution, including the Bill of Rights. The Illinois Conven- 
tion of 1862 had thirty-one committees, upon the following subjects: Executive 
Department ; Legislative Department ; Judiciary ; Judicial Circuits ; Bill of 
Eights; Congressional Apportionment; Legislative Ajsportionment; Federal 
Relations ; Banks and Currency ; Revenue ; Finance ; Railroad Corporations ; 
Counties ; Municipal Corporations ; Miscellaneous Corporations ; Education ; 
Militia and Military Affairs ; Elections and Right of Suffrage ; Schedule ; 
Revision and Adjustment of the Articles of the Constitution ; Internal Im- 
provements ; Roads and Internal Navigation ; Public Accounts and Expen- 
ditm-es ; Township Organization ; State Institutions, Buildings, and Grounds ; 
Canal and Canal Lands ; Penitentiary ; Retrenchment and Reform ; Manu- 
factures and Agriculture ; Printing and Binding ; and Miscellaneous Subjects. 



MODE OF PROCEEDING. 283 

Conventions. In the Pennsylvania Convention of 1837, the 
New York Convention of 1846, and the Kentucky Convention 
of 1849, the mode of determining the committees, which was 
finally adopted, was vigorously opposed as calculated to lavor 
particular views of reform. That mode was to appoint a select 
committee to report generally upon the best mode of proceeding, 
including such a scheme of committees as should in its view 
cover the whole ground of needed changes in the Constitution. 
This course evidently remits the entire question of methods and 
instrumentalities, in the first instance, to a committee of the 
Convention, with the well understood purpose of conceding to 
its recommendations, unless clearly unjust or impracticable, a 
decisive influence. It has, nevertheless, been generally deemed 
the most satisfactory one that could be adopted, though in two 
of the three cases in which it was most largely discussed, another 
course was pursued. It was followed in the two Virginia Con- 
ventions, held in 1829 and 1850 ; the last two of New York, in 
1821, and 1846; the North Carolina Convention of 1835; the 
New Jersey Convention of 1844; that of Missouri, of 1845; the 
Ohio, Michigan, and Indiana Conventions of 1850 ; that of 
Wisconsin, of 1848 ; the two Minnesota Conventions, and the 
Iowa Convention held in 1857 ; and the Massachusetts Conven- 
tion of 1853. Where this mode is pursued, the preliminary 
committee is usually appointed immediately after the perma- 
nent organization of the Convention, and commonly consists 
of one or more members from each senatorial or other political 
division of the State. In its report, this committee generally 
contents itself with recommending a list of standing committees 
based on its view of the prospective work of the Convention, 
though sometimes there is added a resolution relating to the 
disposition of propositions of amendment introduced in Con- 
vention. Where this mode is not pursued, the committees are 
commonly appointed either on the motion of some member,^ 
or upon the recommendation of the committee on rules, a list 
of them in such cases forming a part of its report.^ 

1 They were thus appointed in the Louisiana Conventions of 1844, 18.52, 
and 1864; in that of Kentucky of 1849, Maryland of 18G4, and Massachusetts 
of 1820. 

2 This was the case in the Pennsylvania Convention of 1837, and in those 
of Illinois, of 1847 and 1862. The Maryland Convention of 1850 appointed 
Standing Committees, but upon whose recommendation does not appear. 



284 MODE OP PROCEEDING. 

The persons to compose the Standing Committees are usually 
designated by the President of the Convention. 

To the Standing Committees, thus appointed, the part of the 
Constitution they are severally to consider is apportioned by the 
Convention either in the original resolution appointing them, or 
by special motion ordering the reference to be made. In a few 
instances the existing Constitution has been taken up and read in 
Convention, section by section, and such parts as were deemed 
to require revision, have been referred to the appropriate com- 
mittees. 

§ 297. After the work has been placed thus in the hands of 
committees, since the reports expected from them require time 
for their preparation, it is usual for the Convention to occupy 
itself in the interim, whilst the committees are in session, in 
miscellaneous business, as in considering cases of contested elec- 
tions, or in discussing, in a general way, resolutions relating to 
the principles to be embodied in the new Constitution. Often 
resolutions of the latter character contain instructions to the 
standing committees, now in session, to institute inquiries in 
reference to the expediency of particular amendments. Usually, 
however, until the reports of its committees begin to come in, 
the Convention is in a more or less chaotic condition, proposing 
and voting upon a variety of resolutions relating to reforms con- 
ceived desirable, or to modes of proceeding imagined to be more 
advantageous than those adopted. But this period is generally 
short, for the reason, that reports upon parts of the Constitution 
not needing much change, are early presented, and thus the 
Convention is enabled to commence its work without delay, 

§ 298. The mode of reporting in Conventions is different 
from that adopted commonly in legislatures. In the former, 
reports of committees usually consist merely of articles and 
sections, drawn up in the precise form the committees propose 
they shall bear as parts of the Constitution ; whilst in legisla- 
tive bodies they generally comprise discussions of facts and 
principles, intended to justify particular conclusions, appended 
in the form of resolutions, though sometimes to those abstract 
discussions, instead of resolutions, are added drafts of bills pro- 
posed for enactment. Of prefatory argumentation, the reports 
made to Conventions contain, as a general rule, nothing what- 
ever. In about one-third of the cases, instances have occurred 



EEPORTS OF COMMITTEES. 285 

in which one or more committees have accompanied their re- 
ports by illustrative argument in writing, but that has been 
confined to reports upon topics of unusual importance or inter- 
est.^ This mode of reporting, in the earlier Conventions, pur- 
sued without rule or order to that effect, has in some of the 
later ones been specially required, as in the New York Conven- 
tion of 1846, the Illinois Convention of 1847, the Maryland 
Convention of 1864, and perhaps others. The earliest instance 
I have found in which the subject was mentioned was in the 
New York Convention of 1821, where Gen. Tallmadge, chair- 
r^.an of the committee on the Council of Revision, on present- 
ing a report from his committee, stated that they had not gone 
into any explanation of the reasons which influenced them in 
making the report. This, he admitted, was a departure from 
the parliamentary usage, but the committee had done it not 
without consideration ; " they had omitted to do this, because, 
in their opinion, the Convention might be induced to adopt the 
amendment for different views from those assigned by the com- 
mittee. The reports of committees would remain of record, 
and might hereafter be used to give a false and imperfect con- 
struction to the proceedings of the Convention." He added, 
that the committee " hoped it would be considered by the other 
committees as a precedent." ^ 

§ 299. In the case mentioned there was no discussion, and 
apparently no feeling upon the subject. Not so in the Conven- 
tion of the same State in 1846. Early in the session a resolu- 
tion was introduced, and, without much discussion, carried, 
declaring it to be "inexpedient for the several committees on the 
Constitution to accompany their reports with written explana- 
tions of the reasons which may have influenced them in agree- 
ing thereto." A week later, a motion was made to reconsider 
this resolution, which, after a debate, the spirit and pertinacity 
of which it is difficult to understand, was negatived. In this 

^ Reports without written or other illustration were made in the following 
Conventions: Massachusetts, 1779; New York, 1821 and 1846; Louisiana, 
1844; lUinois, 1847 and 1862; California and Kentucky, 1849; Ohio and In- 
diana, 1850; the two Minnesota and the Iowa Conventions, 1857. In the fol- 
lowing Conventions written arguments or illustrations in a few cases accompa- 
nied reports: Massachusetts, 1820 and 1853; Pennsylvania, 1837; Virginia, 
1829; Wisconsin, 1847; Michigan and Maryland, 1850; and Louisiana, 1852. 

2 Deb. N. Y. Conv. 1821, p. 42. 



286 • REPORTS OP COMMITTEES. 

discussion, in addition to the reason for the restriction given by 
Gen. Tallmadge, it was urged, that if all the reports were ac- 
accompanied by statements of the reasons which induced the 
committees to adopt them, the records of the Convention would 
become excessively voluminous ; that if not so much so as to 
cause them to be wholly neglected, of which there was danger, 
they would be likely to be consulted mainly for the sake of the 
reports which would thus have imparted to them too powerful 
an influence; that the committees being composed of leading 
members, likely to be most eminent in debate, to allow them to 
express their reasons in writing would be to commit them to 
the opinions advanced, and for the reasons therein mentioned, 
and that it would be nearly impossible for the Convention to 
convince or to refute them ; so that, in truth, it was not a ques- 
tion of gagging the committees so much as whether the com- 
mittees should be allowed to gag the Convention ; that the true 
course was, to let the members of the committees stand on the 
same footing as the other members of the Convention, each 
giving his opinion orally in debate ; that thus, the remarks of 
all being reported with proportionate abbreviatioi], each would 
secure for his views the public estimation which they deserved, 
and no more. 

§ 300. Against the restriction it was urged, that the work of 
a Convention was unlike that of a legislature ; that it was to 
go before the people in the shape of recommendations, to be 
by them either adopted or rejected ; that, therefore, the people 
ought to know the grounds on which they had been made ; that 
those would be best determined from perusing the carefully 
drawn reports of committees, giving to the subjects committed 
to them calm and mature consideration ; that such had ever 
been the parliamentary course, and, besides, it would be ab- 
surd to appoint committees to report conclusions, and to sup- 
press the information — often consisting of statistics, or scien- 
tific or historical data — upon which they were based; that, in 
regard to the Convention itself, it was idle to talk of the exces- 
sive influence of committees, they, as a general thing, having 
no influence which they do not deserve to have ; that there was 
no danger of their abusing the privilege proposed to be denied 
them of expressing in writing their reasons for their recommend- 
ations; that the natural indolence of every man would lead him 



EEPOETS OF COMMITTEES. 287 

to avoid the task, always irksome, of drawing up long written 
reports, and to rely for explanations of his views, except in rare 
and important cases, upon speaking rather than writing ; that 
when cases of real importance arose, it was for the interest no 
less of the Convention than of the committees, to arrive at 
clear and definite ideas in the shortest time possible, upon the 
subjects in hand ; that to this end it was highly desirable that 
committees should be allowed and encouraged to present their 
views in writing, in order that the members might take the 
reports with them to their rooms and examine them without the 
distraction of mind so inevitable in the Convention itself ; and, 
finally, that by allowing written reports, many members who 
had no skill in debate, but who could wield their pen with real 
ability, would be able to make to the public counsels valuable 
contributions.^ 

§ 301. Without stopping to consider particularly the argu- 
ments above detailed, it is proper to say, that the true course 
seems to be that pursued by most Conventions, and recom- 
mended by Gen. Tallmadge in the New York Conventions of 
1821 and 1846, to leave the matter of reporting their reasons in 
writing, or not, to the committees themselves, without any rule 
to fetter their discretion. Thus left, it is probable, in a majority 
of cases, committees would prefer to report merely articles and 
sections, trusting to debate to illustrate and enforce their recom- 
mendations. When a case, however, arises, in which, from the 
abundance or complexity of the data on which the conclusions 
of the reports are founded, and by which, if at all, they are to 
be justified, it is deemed important that those data should be 
marshalled in a succinct and orderly array, it will be an act of 
folly to interdict it, since only when thus presented can they be 
grasped and appreciated.^ 

§ 302. On the coming in of the reports of committees, the 
first proceeding commonly is to lay them on the table and order 
them printed, preparatory to their being submitted to the action 
of the Convention. In some cases this preliminary is dispensed 

1 See Deh. N. Y. Conv. 1846, pp. 97-99, 131-138, 142-149, 

2 An article in the Democratic Review for November, 1846, p. 340, refer- 
ring to the New York Convention of that year, impeaches the motives of those 
who concurred in defending this restriction, declaring them, under the circum- 
stances under which the proposition was initiated, to have been " discreditable 
in the highest degree." What those circumstances were I am not informed. 



288 EEPORTS OP COMMITTEES. 

with, and the reports are at once referred for consideration and 
discussion to a committee of the whole. This reference, either 
at this or at a later stage, after the reports have been printed, is 
nearly universal, there being in all the Conventions whose jour- 
nals or proceedings are known to me only two or three excep- 
tions to it. In those cases, the reports were taken up directly 
in Convention, and put on the way to final passage, without 
referring them to a committee of the whole. When so referred, 
after full and often very extended discussion in that committee, 
the reports, as amended by it, are passed through their several 
stages to final adoption, as in case of other laws, by the Con- 
vention itself. 

§ 303. Before the scattered reports of the standing commit- 
tees, amended by the committee of the whole, and afterwards 
by the Convention, are put upon their final passage, it is usual 
to refer them to a committee of revision, or on phraseology and 
arrangement, whose duty it is to file them down to uniformity 
of style, and establish the proper locus of each section in the 
Constitution. A committee charged with this duty is some- 
times appointed among the standing committees, and sometimes 
is raised toward the close of the session, when the occasion for 
its services arises. It has been usual to regard this committee 
as of very slight consequence, as though its operation could 
only be to add to the polish of the instrument, or to the perfec- 
tion of its logical arrangement, but I am persuaded the idea is 
a mistaken one. It is always in the power of such a commit- 
tee — perhaps I might say it is liable, even without intending 
it, in the process of manipulating a Constitution for the purpose 
indicated — to change its language so as materially to alter its 
legal effect. In the hurry of its final passage, such a change 
would be apt, unless very conspicuous, to escape detection. It 
Is said, I think by Mr. Jefferson, that Gouverneur Morris, to 
whom the duty of revising the style of the Federal Constitution 
was intrusted, in performing it, insensibly gave a cast to that 
instrument which it did not bear when it passed into his hands, 
and that the Convention did not discover the change, "^he 
same thing, as I am informed, occurred in the case of the first 
Constitution of Michigan, in which very important changes 
were effected, perhaps unintentionally, in the manner I have 
indicated. 



FINAL REVISION. — SIGNING THE CONSTITUTION. 289 

§ 304. The Constitution, coming from the hands of the com- 
mittee of revision, and being adopted as a whole, it is usual for 
the entire body of the delegates, beginning with their president, 
to subscribe their names to it, in attestation of its genuineness. 
In a few instances it has been signed by the president and sec- 
retary only, and in a few others by such members only as voted 
for it upon its final passage. It is not apparent why members 
should ever refuse to subscribe to the Constitution which has 
been matured by the Convention, if the act be construed, as I 
think it should be, as an act of attestation, and not as a decla- 
ration of approval. 

19 



CHAPTER VI. 

§ 305. We approach now by far the most important question 
relating to Conventions, namely, What are their powers ? 

It is hardly necessary to apprise the reader that, by the terra 
power, as applied to an institution charged with governmental 
functions, is meant not physical ability, but legal ability, or 
that moral competence which Burke describes as " subjecting, 
even in powers more indisputably sovereign, occasional will to 
permanent reason, and to the steady maxims of faith, justice, 
and fixed fundamental policy." ^ In language more familiar to 
ears trained in our constitutional schools, it means competence 
by law or by the principles of our political Constitution. What 
a Convention can do legally, that is, by the express provisions 
of some law, or what, in the absence of such a law, it can do 
consistently with the principles of our Constitutions, among 
which are to be reckoned its own, it has, in general, power to do, 
and nothing further. 

§ 306. The general conception of a Convention is, that it is a 
body of delegates, chosen by the electors of a State, to perform 
certain legislative duties connected with the enactment of the 
fundamental law. The extent of those duties, whether it be to 
frame, establish, and put in operation that law, or only to take 
certain steps toward its establishment, leaving others to be 
taken by other agencies, is mainly the question we are to deter- 
mine. In the general definition of a Convention, just given, the 
term "delegates" is used advisedly, and is intended to be taken 
in its legal sense, as distinguished from the word " representa- 
tives," which is defined by Lord Brougham to be a body of per- 
sons, chosen by the people, to whom the power of the people is 
parted with, and who perform that part in the government 
which, but for this transfer, would have been performed by the 
people themselves.2 

1 Reflections on the Revolution in France. 

2 Political Philos., Vol. III. ch. vi. p. 33. 



TWO THEORIES OP CONVENTIONAL POWER. 291 

§ 307. Two widely different theories of this important insti- 
tution, from which have been derived divergent conceptions of 
its powers, have of late years been in vogue. 

First. One theory is, that the Convention is a strictly repre- 
sentative body, acting for and in the name of the sovereign, 
and possessed, by actual transfer, of all the powers inherent in 
that sovereign, limited, however, in the case of Conventions in 
the several States, by the Constitution of the United States ; 
that it is " a virtual assemblage of the people," of whom, by 
reason of their great numbers and remoteness from each other, 
an actual assemblage, imagined by political speculatists, is im- 
possible, — the most that can be effected being a gathering 
together in convenient numbers of deputies, empowered to repre- 
sent the people, and clothed with all the power the sovereign 
itself would have were it assembled en masse. 

Secondly. The second theory is, that the Convention is a col- 
lection of delegates appointed by the sovereign, through the 
agency of one or more branches of the existing government, to 
perform certain determinate duties in relation to the formation 
or revision of the fundamental law ; what those duties are, de- 
pending upon the tenor of the commission under which it con- 
venes, or, when that is silent, upon sound constitutional prin- 
ciples and precedents. According to this theory, the members 
of a Convention are not, accurately speaking, representatives, 
but delegates; and it is their function, not to enact, but simply 
to recommend, constitutional changes, — unless, indeed, as is 
sometimes the case, the. warrant for their assembling should 
contain authority to act definitively, in which case their power 
would, perhaps, be coextensive with the terms of the grant. In 
other words, in its last analysis, a Convention, according to this 
second theory, is a mere committee, sitting for a specified pur- 
pose, under the express mandate of the sovereign, and possessed 
of such powers only as are expressly granted, or as are necessary 
and proper for the execution of powers expressly granted. This 
theory evidently discards the notion, so much cherished by the 
advocates of the former, that the Convention is clothed with 
sovereign attributes, though doubtless intrusted to some extent, 
under strict regulations, intended to secure responsibility, with 
their exercise. 

§ 308. As I am unwilling to misstate the two theories, above 



292 CASES IN WHICH THE FIRST THEORY HAS BEEN ASSERTED. 

propounded, I extract from the debates of our Conventions, or 
from the writings of our public men, passages in which the one 
or the other has, more or less completely, been maintained. 

Thus, in the Illinois Convention of 1847, Mr. Peters said : — 
" He had and would continue to vote against any and every 
proposition which would recognize any restriction of the powers 
of this Convention." " We are," he continued, " the sovereignty 
of the State. We are what the people of the State would be, 
if they were congregated here in one mass-meeting. We are 
what Louis XIV. said he was, ' We are the State.' We can 
trample the Constitution under our feet as waste paper, and no 
one can call us to account save the people." ^ 

So the Hon. George M. Dallas, in a letter published in " The 
Pennsylvanian " of Sept. 5, 1836, said : — "A Convention is 
the provided machinery of peaceful revolution. It is the civil- 
ized substitute for intestine war When ours shall assem- 
ble, it will possess, within the territory of Pennsylvania, every 
attribute of absolute sovereignty, except such as may have been 
yielded and are embodied in the Constitution of the United 
States. What may it not do ? It may reorganize our entire 
system of social existence, terminating and proscribing what is 
deemed injurious, and establishing what is preferred. It might 
restore the institution of slavery among us ; it might make our 
penal code as bloody as that of Draco ; it might withdraw the 
charters of the cities ; it might supersede a standing judiciary 
by a scheme of occasional arbitration and umpirage ; it might 
prohibit particular professions or trades ; it might permanently 
suspend the privilege of the writ of Habeas Corpus, and take 
from us ... . the trial by jury. These are fearful matters, of 
which intelligent and virtuous freemen can never be guilty, and 
I mention them merely as illustrations of the inherent and almost 
boundless power of a Convention." ^ 

But two further extracts will be given upon this side of the 
question, taken from the proceedings of the Illinois Convention 
of 1862. A committee, composed of some of the leading jur- 
ists in that body, in a report upon the subject of electing a 

1 State Register of June 10, 1847. 

2 To a similar effect, are remarks of Mr. Mitchell, in the Kentucky Conven- 
tion of 1849, Deb. Ky. Conv. 1849, p. 863 ; also of B. F. Butler in the Massa- 
chusetts Convention of 1853, Deb. Mass. Conv. 1853, Vol. I. pp. 78, 97. 



CASES IN WHICH THE SECOND THEORY HAS BEEN ASSERTED. 293 

printer, said : — " When the people, therefore, have elected dele- 
gates, .... and they have assembled and organized, then a 
peaceable revolution of the State government, so far as the 
same may be effected by amendments of the Constitution, has 
been entered upon, limited only by the Federal Constitution. 
All power incident to the great object of the Convention be- 
longs to it. It is a virtual assemblage of the people of the 
State, sovereign within its boundaries, as to all matters con- 
nected with the happiness, prosperity, and freedom of the citi- 
zens, and supreme in the exercise of all power necessary to the 
establishment of a free constitutional government, except as 
restrained by the Constitution of the United States." ^ In a 
speech in the same body, General Singleton said : — " Sir, that 
this Convention of the people is sovereign, possessed of sov- 
ereign power, is as true as any proposition can be. If the 
State is sovereign the Convention is sovereign. If this Conven- 
tion here does not represent the power of the people, where can 
you find its representative ? If sovereign power does not reside 
in this body, there is no such thing as sovereignty." ^ 

§ 309. On the other hand, the theory which regards Conven- 
tions as advisory bodies simply, with limited powers, has been 
broached in equally explicit terms. The earliest case in which 
the powers of such bodies were brought into discussion, was 
that of the Federal Convention of 1787. The credentials of the 
delegates to that body, as is well known, contemplated only a 
revision of the Confederation, leaving it still a mere confederate 
system. On assembling, however, those delegates were gener- 
ally satisfied, that any government, formed by patching up the 
old Confederation, would be wholly inadequate, and that what 
was wanted was a firm national government. But then arose 
the embarrassing question, was it competent for that body to 
disregard its instructions and frame such a system as it deemed 
absolutely necessary for the salvation of the country ? The an- 
swer given to this question marks, indisputably, the sense of the 
statesmen of the Revolution as to the real nature of the Con- 
vention. Their answer was, in substance, that by strict law the 
Convention had no power nor right to disregard the instructions 
of the legislative Assemblies by which they were deputed, on 

1 Illinois State Register of Jan. 10, 1862. 

2 Id. of Jan. 17, 1862. 



294 CASES IN WHICH THE SECOND THEORY HAS BEEN ASSERTED. 

whose call they had assembled ; but that, under the controlling 
necessities of the times, they would venture. to disregard those 
instructions, since, after all, the power of ultimate decision was 
to be in the people, the Convention having authority only to 
recommend, not to act definitively. Thus, Mr. Wilson, of Penn- 
sylvania, one of the profoundest jurists our country has ever 
produced, said : — " With regard to the power of the Conven- 
tion, he conceived himself authorized to conclude nothing, but 
to be at liberty to propose any thing." ^ So, Governor Randolph, 
of Virginia, referring to his own plan of a national government, 
which was afterwards made the basis of the Constitution, as 
adopted, said : " The resolutions from Virginia must have been 
adopted on the supposition that a federal government was im- 
practicable. And it is said, that power is wanting to institute 
such a government ; but when our all is at stake, I will consent 

to any mode that will preserve us Besides, our business 

consists in recommending a system of government, not in mak- 
ing it." ^ Mr. Madison, also, contrasting the plan of Mr. Ran- 
dolph with the federal plan introduced by Mr. Paterson, of New 
Jersey, said : " The principal objections against that of Mr. 
Randolph were the want of power, and the want of practica- 
bility. There can be no weight in the first, as the fiat is not to 
be here, but in the people." ^ In this most important Conven- 
tion, then, of which most of the founders of our institutions were 
members, the power proper only for a sovereign, of definitive 
legislation, was not only not claimed for that body, but it was 
expressly disclaimed. 

§ 310. Similar views have been expressed by members of later 
Conventions. In the Virginia Convention of 1829, John Ran- 
dolph said : " Sir, we have been called as counsel to the people 
— as State physicians to propose remedies for the State's dis- 
eases, not to pass any Act which shall have in itself any binding 
force. We are here as humble advisers and proposers to the 
people." * In the Illinois Convention of 1847, a resolution was 
introduced by Mr. Singleton, containing his views of the powers 
and duties of that body, as follows : — '■^Resolved, that this Con- 
vention is limited in its purposes and powers ; its object being 
to propose, for the acceptance of the people, such changes in 

1 Elliott's De&., Vol. V. p. 196. 2 Elliott's Deh., Vol. I. p. 416. 

3 Id. Vol. V. p. 216. 4 Beh. Va. Conv. 1829, p. 868. 



THEOKY OP CONVENTIONAL SOVEREIGNTY A NOVELTY. 295 

* 
their present Constitution as to the Convention may appear 
necessary, limited, in these changes, by the true principles of a 
republican government, and, in the conduct of its body, by the 
Constitution of this State, as far as it is applicable. That this 
Convention has no power to repeal or modify any Act of the 
General Assembly of this State, otherwise than by constitutional 
provision, subject to the ratification of the people, or do any 
other act not necessary to the discharge of the trust confided to 
it."^ Upon this resolution an animated debate arose, in the 
course of which the two theories of the Convention I have ex- 
plained were distinctly propounded ; the most outspoken and 
extravagant assertion of sovereign powers for the Convention 
being that made by Mr. Peters in the terms quoted in a preced- 
ing section. The result of the debate was, the adoption of a 
mild resolution which avoided the disputed points, as a substi- 
tute for the foregoing one, by a vote of 87 to 64. Other extracts 
might be added, firom the debates of other Conventions, and 
particularly that held in Illinois in 1862, in which the two theo- 
ries of the powers of those bodies were elaborately discussed. 
Enough, however, has been given, to answer my purpose, which 
is simply to illustrate, by actual examples, the scope and tenor 
of the divergent theories entertained on the subject. 

§ 311. Of these two theories, it is important now to note, that 
the first, which attributes to the Convention powers amounting 
sometimes — the State alone considered, in which the body 
meets — to absolute sovereignty, is of modern origin. A care- 
ful search amongst the records of our Conventions reveals no 
trace of it earlier than the New York Convention of 1821. In 
1829, it again made its appearance in the Virginia Convention, 
but obscurely and hesitatingly. A question arose as to the power 
of that Convention to disregard positive instructions of the leg- 
islature relative to the submission of the fruit of its labors to the 
people, in the discussion of which, doctrines were propounded 
which afterwards ripened into the theory in question. The next 
appearance was in the letter of Mr. Dallas, fi'om which an ex- 
tract has been given above, and in the Convention held in Penn- 
sylvania in the following year — the latter the fruit of the seed 
sown by that gentleman. The theory, however, was but par- 
tially propounded in the Convention, traces of it lurking in a 
1 Journal Illinois Conv., 1847, p. 13. 



296 THEORY OF CONVENTIONAL SOVEREIGNTY A NOVELTY. 

scarcely recognizable form in certain assertions of power, made 
for particular purposes. The boldness of the position taken by 
Mr. Dallas had excited opposition in the State, and caution was 
necessary. In the struggles preceding the meeting of that Con- 
vention, the advocates of reform had succeeded in inducing the 
legislature to call the body, but subject to stringent limitations, 
in regard to the submission of its amendments to the people. 
On assembling, a discussion arose between the advocates and 
opponents of reform as to the extent and nature of the powers 
of the Convention, thus limited ; whether it was or was not re- 
stricted to submitting amendments, or whether it might not, on 
the one hand, frame a new Constitution, or, on the other, adjourn 
without proposing any change whatever. During this discus- 
sion, opinions were occasionally expressed, which indicated that 
the theory of conventional sovereignty had been making progress 
since its first appearance in New York a few years before. 

Ten years afterwards, this theory was enunciated, in the terms 
we have seen above, by Mr. Peters, in the Illinois Convention 
of 1847.^ In 1849, it made its appearance in the Kentucky Con- 
vention, and four years later, in that of Massachusetts, under 
the patronage of Messrs. Hallett and Butler. In 1860-1861, it 
produced its legitimate fruits in the so-called secession of the 
eleven slave-holding States from the Union, a movement ma- 
tured and consummated by its aid ; and finally, in 1862, its 
echo was heard in the free State of Illinois, whose Convention 
unwisely seized upon a time of national peril to endorse a dis- 
organizing dogma, in the general adoption of which at the South 
that peril had originated." ^ 

, 1 Ante, § 308. 

* 2 The notions entertained in the seceding States, as to the powers of Conven- 
tions, may be inferred from the following extract from a speech made by the 
Hon. William L. Yancey, in the Alabama Convention of 1861. The question 
being on the submission of the Ordinance of Secession to the people, that gen- 
tleman said : — 

" This proposition is based upon the idea, that there is a difference between 
the people and the delegate. It seems to me that this is an error. There is a 
difference between the representatives of the people in the law-making body, 
and the people themselves, because there are powers reserved to the people by 
the Convention of Alabama, and which the General Assembly cannot exercise. 
But in this body is all power — no powers are reserved from it. The people 
are here in the persons of their deputies. Life, Liberty, and Property are in 
our hands. Look to the Ordinance adopting the Constitution of Alabama. It 



THEORY OF CONVENTIONAL SOVEREIGNTY A NOVELTY. 297 

§ 312. Such has been the career of this famous political dogma, 
as exhibited in Conventions recognized by their respective States 
as legitimate. In the mean time, in Maryland, in 1837, coupled 
with the heresy that a mere majority in numbers of the adult 
male citizens, without regard to legal provisions, can at any time 
call a Convention to alter or abolish the Constitution, it came 
near flaming into actual revolution — a call for a Convention 
being issued by private individuals, who only desisted from their 
illegal purpose, upon the appearance of a proclamation of the 
Governor denouncing it as treasonable. Five years later the 
same doctrines ripened and produced their legitimate fruits in 
Rhode Island, in the Dorr rebellion, of which a history was given 
in a preceding chapter. In that State, a Convention, called by 
unofficial persons, and claiming to represent the people of Rhode 
Island, because deputed by a majority of all the male citizens 
of twenty-one years of age, resident in the State, though not 
by a majority of the legal voters at a regular election, framed a 
Constitution, and attempted by force of arms to maintain it as 
the legitimate Constitution of the State. 

In these proceedings, the alarming position was taken, that 
not only could a Convention be got together in defiance of the 
existing government, but, when assembled, it could remodel that 
government, — eject from office those charged with its adminis- 
tration, without their consent or that of the electoral body, on 
which the whole political structure was immediately bottomed. 
Such was the first conspicuous practical application of the theory 
of conventional sovereignty. The second has been already re- 
ferred to, as exhibited on a more imposing scale, in 1860-1861, 
when eleven States sought, under its inspiration, to break in 
pieces the temple of the Union.^ 

states, ' We, the people of Alabama,' &c., &c. All our acts are supreme, without 
ratification, because they are the acts of the people acting in their sovereign 
capacity." — Hist. Sf Deb. Ala. Conv. 1861, p. 114. 

1 Comparing the dates of the various Conventions, in which the theory of 
conventional sovereignty has been propounded, with those of the successive tides 
of pro-slavery fanaticism in the United States, it is difficult to resist the convic- 
tion, that the assertion of that theory was connected with the great conspiracy 
which culminated in the late Secession war. Was it foreseen, that to carry out 
the design of disrupting the Union, with an appearance of constitutional right, 
new conceptions must become prevalent, as to the powers of the bodies by which 
alone the design could be accomplished ? And conceding the existence of such 



298 ARE CONVENTIONS POSSESSED OP SOVEREIGN POWERS? 

§ 313. Admitting, however, that the theory in question is a 
novelty, it is not always true, especially in politics, that " what- 
ever is new is false," and it is therefore fairly incumbent on 
those who reprobate that theory, not alone to denounce it as 
novel, or to array against it the invectives of its opponents, but 
to refute it. This, it is my hope, in what follows, to be able to 
do. The refutation, however, will be much of it inferential, 
depending on the consideration not only of general principles, 
but of particular questions, relating to the power of Conventions 
in special cases, which either have actually arisen or are likely 
any day to arise. 

§ 314. The powers of Conventions, including in that terra 
both positive and negative powers, that is, both powers and 
disabilities, may be most conveniently discussed by coUvsidering 
them with reference, 

I. To the external relations of those bodies ; that is, their 
relations to the political society in which they are assembled ; 
or, more particularly, — 

(a). To the sovereign, or to the rights of sovereignty. 

(b). To the government of the state, as a whole. 

(c). To the electors, or most numerous branch of the govern- 
ment. 

(d). To the three great departments of administration, — leg- 
islative, executive, and judicial ; — and 

II. To their internal relations — to the perfecting of their 
organization, to the maintenance of discipline over their own 
members or over strangers, and to the prolongation or perpetu- 
ation of their existence. 

To this discussion will be devoted the remainder of this chap- 
ter. 

§ 315. (a). The powers of Conventions, considered with ref- 
erence to the sovereign, or to sovereignty, may be best exhibited 
by answering this question : Are Conventions possessed to any, 
and what, extent of sovereign powers ? If a Convention is pos- 

a conspiracy, to be carried through by such means, were the eminent names 
cited above the willing tools or the dupes of the far seeing traitors who hatched it ? 
Even in the case of Mr. Livingston, who broached the theory in the New York 
Convention of 1821 (see Deh. N. Y. Conv. 1821, p. 199) the imputation of pro- 
slavery fanaticism would seem not entirely unjust. The purpose of Mr. L. in 
propounding the theory was to satisfy the Convention of its power to abridge 
the right of suifrage accorded by existing laws to the free blacks of New York. 



ARE CONVENTIONS POSSESSED OF SOYEREIGN POWERS? 299 

sessed of sovereign powers, it must be either, first, because, 
while its members have no individual or personal sovereignty, 
the body has received sovereign powers, by actual transfer from 
their original source, the sovereign, and holds them absolutely, 
by right of representation ; or, secondly, because its members, 
in common with all the citizens, or, at least, with all the electors, 
are possessed of individual or personal sovereignty, and, accord- 
ingly, when assembled in Convention, wield sovereign powers 
absolutely, both in their own right and in that of their co-sover- 
eigns, outside of the body, whom they represent. Of these two 
alternatives, the first supposes sovereignty to be alienable, which, 
in a former chapter,^ we have seen to be incompatible with its 
nature. Sovereignty was there shown to be inherent in the 
political society ; and it was stated that, although two or more 
sovereigns might become merged into one, sovereignty is indi- 
visible and incommunicable. It is impossible that a sovereign 
society should transfer its inherent sovereignty to any other 
society, or to a part of itself, so as to render the receiving body 
or person absolute sovereign over it. The mind refuses to con- 
ceive of a political society in a fit of apathy or of frenzy, part- 
ing with its birthright beyond redemption. And to suppose 
such an alienation made to citizens of the State, however emi- 
nent, would be scarcely less abhorrent than to aliens. It is not 
to be imagined that, were such an alienation possible, it could 
be made by the sovereign society itself directly ; it must be 
made by some part of it, claiming a right to act for it by repre- 
sentation, as by some branch of the government now existing. 
But that the electors, or either of the three administrative de- 
partments of the government, should be able by any hocus poc7is 
to transfer those transcendant powers which belong to the polit- 
ical society as such, is incredible; certainly without an express 
warrant from the sovereign to that effect. And supposing such 
a warrant were a thing possible to be given, what consideration 
could there exist sufficient to sustain, in any court, whether of 
law or of abstract morality, so unconscionable a contract ? It 
is this view which justifies the revolts now so common in Eu- 
rope, of subjects against their servants, calling themselves their 
sovereigns. Intrusted with the government, those servants or 
their ancestors, in some former age, upset the balance of the 
I See ante, § 22. 



300 ABE CONVENTIONS POSSESSED OP SOVEREIGN POWERS? 

Constitution, and proclaimed themselves to be the true sover- 
eigns. But such a proclamation cannot alter the fact, which is, 
that the nation as a unit is the only sovereign. Force or fraud 
on the part of the servant, or pusillanimity on that of the na- 
tion, may have given the prestige of success to the usurpation 
of the former, but cannot have divested the inalienable rights of 
the latter. No truth is becoming more clear, in our day, than 
that in demanding everywhere the supreme direction of the 
commonwealth, and in asserting a right to determine the modes 
and instruments of its administration, the people — the nation 
— are but reclaimijig their own. 

§ 316. It seems clear, then, that if there is claimed for a Con- 
vention the possession of absolute sovereignty for the time be- 
ing, it must be, not on the de jure ground of actual transfer, 
but on the de facto one of successful usurpation or revolution ' 
which, as divesting the rights of the people, we have just seen, 
is of no force or validity whatever. 

And here it is proper to note a distinction which is made by 
those who maintain the derivation of sovereign powers to Con- 
ventions by transfer from the true sovereign, namely, that if not 
absolutely sovereign with reference to the political society, they 
are so with respect to the objects for which they are respectively 
convened, namely, the framing anew, altering, or amending of 
the fundamental law. Thus, in the Illinois Convention of 1862, 
the committee, whose report on the powers of that body has 
been already mentioned, conclude that remarkable document as 
follows : — 

" Your committee, therefore, have come to the conclusion, 
that, after due organization of the Convention, the law calling 
it is no longer binding, and that the Convention then has su- 
preme power in regard to all matters necessary and incident to 
the alteration and amendment of the Constitution." Here, if 
words mean any thing, the Convention is claimed to be sover- 
eign in a sphere of operations which is limited, relating to the 
enactment of the fundamental law. But, it is certain that that 
Convention was not sovereign, nor even supreme, in that sphere, 
but subject to the Constitution of the United States. That 
was distinctly admitted, on numerous occasions, by members of 
that Convention who were loudest in their assertions of sover- 
eign powers, and by the committee itself above referred to, in 



ARE CONVENTIONS POSSESSED OF SOVEREIGN POWERS? 301 

their report, from which that extract was made. In another para- 
graph the committee say: — "It" (the Convention) "is a vir- 
tual assemblage of the people of the State, sovereign within its 
boundaries as to all matters connected with the happiness, pros- 
perity, and freedom of the citizens, and supreme in the exercise 
of all power necessary to the establishment of a free constitu- 
tional government, except as restrained by the Constitution of the 
United States." What kind of a sovereignty is that, which is 
limited, in respect of its sphere of action, to alterations of the 
fundamental law, and limited within that sphere by the Consti- 
tution of a distinct society, by which it is forbidden to meddle 
with important subjects of legislation, such as war and peace, 
treaties, &c., proper for any body which is really sovereign ? 
Moreover, this very Convention, which refused to obey the in- 
junction of the statute, under which it assembled, relating to its 
printer, deemed itself compelled, as well by the injunction of 
that same statute as by the customs in such cases established, 
to submit to the people for ratification or rejection the Constitu- 
tion it had matured. If a body thus hampered and subordi- 
nated is a sovereign power, so are their grooms and their boot- 
blacks, since each of those menials has committed to him 
absolute power to perform the duties assigned him, subject to 
the limitations contained in his commission and to the laws of 
the land. 

§ 317. The other alternative, which supposes every citizen, or, 
at least, every elector possessed of sovereign powers, according 
to the loose political jargon of our times, and that Conventions 
represent them in their sovereign character, each of their mem- 
bers being a sovereign in his own right as well as in the right of 
representation of sovereigns, involves two fundamental errors, 
which indeed are its only foundation. The first error is in sup- 
posing that there is any such thing as the personal sovereignty 
of individuals in any political society whatever. In relation to 
political rights and obligations, the unit is not the individual or 
the family, unless indeed the family constitute a patriarchal 
government, but the state. In the matter of civil rights and 
obligations, on the other hand, the unit is the individual citizen 
We have pointed out in the chapter on sovereignty the absurd 
consequences flowing from the hypothesis either of many sov- 
ereigns in the same political society, or of a divided or fractional 



302 ABE CONVENTIONS POSSESSED OP SOVEREIGN POWERS? 

sovereignty in the separate citizens of a state. In either case, 
each citizen would be equal to every other citizen, and there 
would be no common superior — a condition of things in which 
government would be impossible, and laws and Constitutions 
become what Mr. Burke styled the Bill of Rights of the French 
Constitution of 1793, but " a digest of anarchy." 

§ 318. The second error in the hypothesis of conventional 
sovereignty based on the representation of individual sovereigns, 
is in supposing that such a sovereignty of the individual could 
be alienated, were it conceded to exist. It is evident that the 
hypothesis that every citizen is vested to some extent with the 
attributes of sovereignty, is founded on transcendental views of 
the dignity of the individual, resulting from an extension to 
every person considered as a part of a political society, of rela- 
tions, rights, and duties, analogous to those which are conceived 
as attaching to him in the domain of morals. But this is 
erroneous, and is one of many instances showing the dangers of 
reasoning by analogy in matters of political concernment. But 
supposing such a sovereignty of the individual to be a fact, to 
alienate it would be to impart to another powers which be- 
longed to the giver only by virtue of his individual manhood, 
which were essential attributes of his personality, and which 
consequently he could not give, nor another receive. If a Con- 
vention of several of those individual sovereigns were pos- 
sessed of sovereignty, it would be a contradiction to suppose 
that transcendent power to be left still existing in the persons 
whom it represented. The result is, then, that in no intelligible 
sense of the word sovereign can it be properly applied to a 
Convention. 

§ 319. Before leaving this branch of the discussion, it is 
proper to note, that although Conventions are not sovereign 
bodies, they are intrusted by the sovereign society with the exer- 
cise of an important sovereign power, that of legislation, of a 
certain kind, and to a certain extent. The substantive powers 
of government, such as those of enacting, expounding, and exe- 
cuting the laws, are all sovereign powers. But when it is said 
that the several agencies constituting a government are per- 
mitted to exercise sovereign powers, it is far from asserting that 
those agencies are possessed of original sovereignty. While 
they are wielding powers that belong to the sovereign society, 



RELATIONS OP CONVENTIONS TO THE STATE. 303 

that society is conceived of not only as existing, but as clothed 
continually with all the rights of source of power, and of final 
arbiter in all questions relating to its extent or exercise. The 
argument, therefore, which should seek to infer sovereignty in 
the Convention from the fact of its being vested to some extent 
with the exercise of sovereign powers, would prove too much; 
it would prove that, in any well-constructed government in our 
times, there were numerous sovereign bodies or persons, the 
legislature, the king, president or emperor, and the bench of 
judges. 

§ 320. (b). We are next to inquire into the relations of Con- 
ventions to the government of the state, as a whole, and the 
powers growing out of those relations. 

As to the former, the substance of what I desire to say, 
may be comprised in the discussion of a single question, — Is a 
Convention a component part of the governmental system of 
the state ? 

If it is not a part of that system, certainly the difficulties of 
locating it and of ascertaining its powers are infinitely enhanced, 
for the only alternative is to consider it as imperium in imperio ; 
a body whose powers cannot be delineated, because practically 
unlimited ; a body having only an incidental relation, by reason 
of the necessities attending its birth, to the ordinary govern- 
mental agencies — the government, indeed, sustaining to it the 
relation not of parent or guardian, but of midwife merely — a 
body, finally, standing in necessary connection only with the 
sovereign for which it acts, or, rather, whose successor it is. On 
the other hand, nothing could conduce more to simplicity of 
view, than to consider this institution as a branch of that system 
by which the state, considered as a political society, works out 
its will in relation both to itself and to the citizens of which it 
is composed. And this, although the subject is not free from 
difficulty, I am satisfied is the correct view to take of the ques- 
tion. We have seen in the first chapter, that, in England — and 
the same is true generally in all foreign states — the power of 
fundamental legislation belongs to the Parliament, precisely as 
does that of ordinary legislation ; and that, for special reasons 
which were there detailed, a different plan has been adopted in 
the United States, namely, that of distinct bodies for the two 
species of legislation. The fact, however, that, except with us. 



304 EELATIONS OF CONVENTIONS TO THE STATE. 

the two species are always united, demonstrates that there is no 
natural incompatibility between them. Though variant in char- 
acter and importance, fundamental laws and municipal laws 
equally conform to the definition of laws. And certainly, the 
enactment of laws is the proper function of the government of 
a state. If it be objected, that the idea of a system depending 
for its own renovation upon itself, involves a contradiction, the 
reply is, that there is in it no contradiction, whenever, as in every 
political society, the system is one operated by vital forces. This 
is a matter of common experience in the strictly analogous case 
of the animal kingdom. In the animal, those organs by which 
are discharged the functions of reparation and reproduction are 
clearly as much parts of the organism as those by which it de- 
fends itself from hostile attack, or adjusts itself to changes of 
its physical condition. Why should that body of functionaries 
which legislates for the governors, as such, be denied a place in 
the state governmental system any more than that which legis- 
lates for the governed ? The circumstance that the former 
assembles only occasionally, though it doubtless leads to much 
of the misconception prevalent regarding it, is really a matter 
of no consequence in determining its true character. The fre- 
quency or infrequency of its assembling is rather one of those 
matters of practical detail which are determined from time to 
time, as may be necessary to render the Convention system 
harmless as well as efficient. But the fact that Conventions 
always regularly assemble on the call of the legislatures of the 
states concerned, indicates decisively, that the Convention has a 
place in the governmental system. Had it been the design of 
those who framed that system originally, to make of the Con- 
vention a power outside of the circle of government, why make 
it dependent for its existence upon an act of a single depart- 
ment of that government, thus stamping upon its very front 
indubitable evidence of its filial relation to it? 

§ 321. The probability that Conventions were intended to be 
parts of the systems of government amongst us, is increased by 
looking at the practical consequences of the contrary hypothesis. 
If they are not parts of those systems, they must be independent 
of them, practically, and those theorizers may be right, who 
proclaim the incompetence of legislatures to bind Conven- 
tions by their enactments. To the legislature, in that view. 



AEE MEMBERS OF CONVENTIONS STATE OFFICERS ? 305 

belongs the ministerial duty of issuing the fiat by which the 
Convention is spoken into being, but there its power ends. Once 
assembled and organized, that body slips its leash and bounds 
into a condition of absolute uncontrollability. It becomes po- 
tentially, at least, a realization of that remorseless monster in 
the human form which the fancy of Mrs. Shelley has depicted 
in her Frankenstein — a product of transcendent mechanical 
and philosophical skill, endowed with life and intelligence, but 
destitute of moral instincts or of practical accountability; a 
monster with powers so surpassing those of the philosopher who 
created it, that it was wholly beyond his control — he could not 
even kill it. In short, on this hypothesis, a Convention would 
exhibit the anomaly of an institution, manifesting all the traits 
of an absolute despot, occasionally springing up alongside of 
a system of laws, and, during its unregulated and indeterminate 
existence, compelling from that system complete obedience. If 
this be thought to be an extreme view of the possibilities of such 
an institution, the answer is, that in estimating the character of 
any political power, it is extremes that must be considered ; for 
to them it is the tendency always to run. A political system 
can be safely characterized only by transcribing its least favora- 
ble feature, precisely as the strength of a machine is to be gauged, 
not by that of its strongest, but by that of its weakest, part. 

§ 322. In the Illinois Convention of 1862, a question arose 
involving a practical application of these principles. By the 
Constitution of that State, Art. V. Sec. 10, it was provided, 
that the judges of the Supreme and Circuit Courts should not 
be eligible " to any other office, or public trust, of profit," in the 
State or the United States, during the term for which they were 
elected, nor for one year thereafter ; and that all votes for either 
of them for any elective office (except that of judge of the Su- 
preme or Circuit Court) given by the General Assembly or the 
people, should be void. One of the delegates, Mr. O'Melveny, 
having been a judge of one of the Circuit Courts, within one 
year prior to his election to the Convention, his competitor con- 
tested his seat, on the ground, that he was incapable of sitting 
as a member of that body under the above provision of the 
Constitution. The Convention having at first, without a di- 
vision, decided that he should retain his seat, a motion was 
made on the following day, to reconsider that vote, upon which 

20 



306 ARE MEMBEES OF CONVENTIONS STATE OFFICERS ? 

arose a spirited debate, the question being, whether to be a 
member of a Convention was to hold " an office, or public trust 
of profit" in the State. On the part of those who sustained 
the sitting member, it was contended, that the words " office, or 
public trust," referred particularly to the distribution of powers 
contained in the Constitution, according to the first section of 
the second article of which, the powers of the government of the 
State were confided to three separate bodies of magistracy, the 
legislative to one, the executive to another, and the judicial to 
a third. To which of these departments, it was asked, did the 
delegate to the Convention belong ? Certainly, it was answered, 
it could not be contended that he belonged to either of them, 
for all the officers belonging to each were specially enumerated 
in the Constitution. The only plausible argument that could 
be urged against this view, it was said, was, that there was 
another provision of the Constitution, that relating to amend- 
ments, which provided for the election of delegates to the Con- 
vention, from which it might be attempted to infer, that those 
persons, being chosen in pursuance of the Constitution, were as 
much holders of office or public trust under it, as were the 
judges or the governor ; but that the reply was, that the con- 
stitutional provision referred to did not, either in terms or spirit, 
define the qualifications of delegates, as it did those of the 
judges, members of the legislature, etc. ; it simply left the people 
to choose whomsoever they might desire, without regard to age 
or other qualifications ; whereas, had the framers of the Consti- 
tution regarded the members of the Convention as State officers, 
they would have inserted particular provisions, prescribing not 
only the persons to be elected, but the time and mode of their 
election, and perhaps their powers and duties. 

§ 323. On the other hand, it was contended by those who 
favored the contestant, in substance, that if membership of a 
Convention was, not an office, which was not conceded, it cer- 
tainly was a public trust, and that, of the greatest magnitude. 
Every constable, and every justice of the peace, — functionaries 
whose duties were comparatively trivial, — was conceded to be an 
officer, and in a position of public trust, because it had been 
found not impracticable to specify in the Constitution the classes 
of persons who should fill those places and the full scope of 
their duties ; but those pubfic servants, whose business so far 



ARE MEMBERS OP CONVENTIONS STATE OFICERS ? 307 

transcended in importance that of all others that it was deemed 
impracticable or inexpedient to limit it by prior description, and 
upon the fidelity of whom, to their constituents, depended the 
liberties, to say nothing of the existence, of the Commonwealth, 
were not only not officers, but they were denied to be holders 
of a public trust in the State which they thus served ! Besides, 
what was the reason for inserting the prohibitory clause in the 
Constitution ? Clearly, to furnish a guaranty of the purity 
and independence of the State judiciary ; qualities which could 
not well exist, if, while invested with the judicial robes, the 
judges were allowed to participate in the scramble for Federal 
or State offices. But did the framers of the Constitution in- 
tend that those officers whom they forbade to accept another 
position of profit under the State, or the United States, for an 
entire year after sitting as judges, lest the honor of the bench 
might be sullied, should be at liberty to enter a Convention to 
new-model the fundamental laws, — amongst them, perhaps, 
those regulating the tenure and emoluments of their own 
offices ? 

§ 324. In my judgment, there can be but little doubt, that a 
member of a Convention is, in the enlarged and proper accepta- 
tion of the term, an " officer " of the State. This follows, not 
simply from the reasonings in the Illinois Convention, of which, 
somewhat developed into details, an abstract has been given, 
but especially from the principles explained in preceding sec- 
tions. A Convention is a part of the apparatus by which a 
sovereign society does its work as a political organism. It is 
the sovereign, as organized for the purpose of renewing or 
repairing the governmental machinery. That same sovereign, 
as organized for the purpose of making laws, is the legisla- 
ture ; as organized for the purpose of applying or carrying into 
effect the laws, it is the judiciary or the executive. These suc- 
cessive forms into which the sovereign resolves itself, are but 
systems of organization having relation more or less directly to 
the government of the society. Together, they constitute the 
government. And yet they do not each constitute the govern- 
ment. One branch of the governmental system may perform no 
governing function at all, in the ordinary sense of the term — 
may not operate or administer the government. Thus, under 
those Constitutions which directed the election of a Council to 



308 CAN CONVENTIONS FILL VACANCIES IN THE GOVERNMENT? 

the Governor, merely as an advisory body, such Council, though 
clearly a branch of the government, did not govern. The gov- 
ernment of a commonwealth is the totality of those instruments 
through whose ministry its political organization is begun and 
continued. It is that totality which governs, and not necessarily 
either of its members, precisely as it is the body of an animal 
which lives and acts, and not the separate parts, though, doubt- 
less, of these, one masticates the food, another digests it, a third 
performs locomotion, a fourth thinks, and so on. And, as in the 
living body, each organ, contributing by no matter how humble 
or obscure a function to the common life, or development, is a 
member of the organism ; so in the commonwealth every citizen 
or body of citizens, charged with any duty looking to the de- 
fence, the operation or the renewal of the political system, is an 
organ of that commonwealth for purposes connected with its 
government, and must be ranked amongst its officers. In other 
words, if the nutritive and reproductive apparatus is properly 
reckoned as a part of the animal economy, the corresponding 
apparatus, in an organized state, must be accounted a part of 
the political structure. 

§ 325. The relations of Conventions to the state as a whole 
being ascertained, three practical questions will now be con- 
sidered, from which their powers, growing out of those rela- 
tions, may be determined, namely — 

1. Can a Convention appoint officers to fill vacancies in the 
various governmental departments ? ^ 

2. Can it eject from office persons holding positions in the 
government by regular election or appointment ? ^ 

3. Can it direct such officers in the discharge of their duties ? ^ 

1 In the Louisiana Convention of 1844, a resolution was introduced provid- 
ing that certain specified officers should fill the offices of Parish Judges and 
District Judges, "now vacant by the election of said officers to this Conven- 
tion." The resolution was defended by its mover on the ground of necessity ; 
but the Convention deemed the assumption of the power unwarranted, and 
rejected the resolution by a vote of sixty-eight to one. — Deb. La. Conv. 1844, 
pp. 26, 27. 

2 This question was raised in the Illinois Convention of 1862, but the power 
was not exercised. 

3 This question was raised in the Louisiana Convention of 1864, and the 
power of instruction asserted by a vote of sixty to fourteen. It notified the 
proper authorities to raise the salaries of loyal ladies engaged in " teaching the 



CAN CONVENTIONS REMOVE FROM OR APPOINT TO OFFICE? 309 

If a Convention has power to do either of these acts, what is 
the extent of its power, and in what mode must it be exer- 
cised ? 

The power to fill vacancies in the government must be denied 
to a Constitutional Convention in any case. A sufficient reason 
for denying it is, that it is not necessary, since, running a paral- 
lel course to that body, and in full life and activity, is the ordi- 
nary appointing power, in its several departments, to whom the 
duty of filling such vacancies, by the Constitution, belongs. To 
assume the power would be justifiable only under a pressure of 
circumstances such as would necessitate usurpation, and convert 
the Constitutional into a Revolutionary Convention. Even sup- 
posing the body invested with definitive powers to establish a 
Constitution, without submission to the people, the selection of 
officers to fill vacancies, however occurring, could not be shown 
to be necessary to the fulfilment of such a commission. That 
duty could be better done by those to whom it is usually com- 
mitted ; and when to this it is added, that it would be unsafe to 
intrust power so extensive to a single assembly, an express 
warrant must be demanded before assenting to its exercise. 

§ 326. To the two remaining questions, so far as they relate 
to direct action of the Convention, the same answer must be 
given. That body cannot remove from office, or instruct those 
holding office, by any direct proceeding, as by resolution or 
vote applying to particular cases. It is its business to frame 
a written Constitution ; at most, to enact one. It has no 
power, under such a commission, to discharge the public ser- 
vants, except so far as their discharge might result from the 
performance of its acknowledged duty. Indirectly, therefore, 
by constitutional provision of general application, unquestion- 
ably the power of removal must exist. A Convention may 
abolish existing offices, and thus effect the removal of those 
who fill them. So, in reference to instructing officers in rela- 
tion to their duties, so far as the discharge of its admitted 
function, the framing of fundamental laws, is concerned, there 
is no doubt a Convention may modify at pleasure the regula- 
tions under which the government is administered in all its de- 
partments. But to attempt to issue instructions, in relation to 

youth of our country." The Convention, however, as we have seen, was a rev- 
olutionary body. 



310 CAN CONVENTIONS REMOVE FROM OR APPOINT TO OFFICE ? 

matters of current policy, to particular officers, would be to blend 
with its ordinary and normal function those belonging properly 
to the legislature. Especially would this be improper, when the 
Convention meets under a call of the usual character, contain- 
ing no power but to frame and submit to the people, for their 
adoption or rejection, a draft of a Constitution. 

§ 327. Such, I think, upon principle, must be the answer to 
the questions indicated. 

In relation to the power of a Convention to remove from, 
or appoint to, office, an interesting discussion has lately arisen 
in Missouri, to which attention must for a moment be directed. 

By the Act of the General Assembly, calling the Missouri 
Convention of 1865, Sec. ,V., the delegates elected to that body 
were required to meet and organize, and thereupon to proceed 
"to consider, first, such amendments to the Constitution of the 
State as may be by them deemed necessary for the emancipa- 
tion of slaves ; second, such amendments to the Constitution of 
the State as may be by them deemed necessary to preserve in 
purity the elective franchise to loyal citizens, and such other 
amendments as may be by them deemed essential to the promotion 
of the public goodP 

No further directions were given in the Act as to the nature 
of the amendments to be considered by the Convention, nor 
was that body required specifically to submit the fruit of its 
deliberations to the people. 

The Convention met on the 6th of January, 1865, and ad- 
journed on the 10th of April, having in the meantime prepared 
divers amendments to the Constitution, which, being submitted 
to the people on the 6th of June, following, were adopted. Be- 
side these, it also, on the 11th of January, adopted and put in 
operation, without submission to the people, an Ordinance 
" abolishing slavery in Missouri." In like manner, on the 17th 
of March, it adopted and put in operation, without submission, 
an Ordinance " providing for the vacating of certain civil offi- 
ces in the State, filling the same anew," &c., of which the ma- 
terial portion was as follows : — "Be it ordained, &c. 

" Section I. That the offices of the Judges of the Supreme 
Court, of all Circuit Courts, and of all Courts of Record, estab- 
lished by any Act of the General Assembly, and those of the 
Justices of all County Courts, of all Clerks of any of the afore- 



CAN CONVENTIONS REMOVE FROM OR APPOINT TO OFFICE ? 311 

said courts, of all Circuit- Attorneys and their assistants, and of 
all Sheriffs and County Recorders, shall be vacated on the first 
day of May, one thousand eight hundred and sixty-five, and the 
same shall be filled for the remainder of the term of each of said 
offices, respectively, by appointment by the Governor." 

In pursuance of this Ordinance, each of the offices specified 
was filled by the Governor — the prior incumbents having 
been first, with force or otherwise, ejected therefrom. A vehe- 
ment outcry was thereupon raised, charging the Convention and 
the Governor with having exceeded their authority. Whether 
they did so or not must depend on the question, whether the 
vacating Ordinance of March 17, 1865, was an amendment to 
the Constitution or not. If it was, it was within the express 
letter of the commission under which the Convention proceeded, 
the Act calling it together. K it was not, that body, clearly, 
was guilty of usurpation, since it is only laws of a fundamental 
character, that a Convention has power to enact or recommend. 

§ 328. Of the question stated, whether the Ordinance of 
March 17, 1865, was an amendment to the Constitution or not, 
the following considerations seem to me to be decisive : — 

1. An amendment to a Constitution is an Act, passed by 
competent authority, modifying permanently the structure, the 
operation, or the guarantees of the government. An Act which 
relates only to its temporary administration^ to the particular in- 
dividuals who shall or shall not fill its offices, or which, leaving 
the Constitution in its letter intact, merely suspends its action 
for a time, on some great emergency, cannot be called an 
amendment to its Constitution. It is rather an administrative 
Act, in the large sense of the term ; or, where its effect is 
merely to suspend the action of the Constitution, it is, in sub- 
stance, an executive Act, proper especially for an officer charged 
to see to it, that the Republic receives no detriment. In short, 
to borrow a figure which perfectly expresses the distinction I 
am contending for, it is an Act proper, not for the millwright^ 
but for the miller. 

2. That the Ordinance of March 17th was of this temporary, 
administrative character, lacking the essential characteristics of 
a fundamental Act, is apparent from its terms. In the first 
place, as I have stated, it ousted from office not a class of per- 
sons, but particular individuals ; declaring, not that citizens 



312 CAN CONVENTIONS EEMOVE FROM OR APPOINT TO OFFICE? 

lacking specified qualifications should be thenceforward inca- 
pacitated to hold the office of judge, &c., but that Judges Bay 
and Dryden,! &c., then holding office, should vacate the same. 
Secondly, the Ordinance required the Governor to fill the offices 
thus vacated '■'■ for the remainder of the term of each of said 
offices.''^ It thus recognized the term fixed by the Constitution 
as still existing, and limited its own operation to the part there- 
of yet unexpired. In so doing, it obviously contemplated that, 
at the expiration of that term," the same offices should be filled 
as the Constitution provided, the Ordinance notwithstanding. 
In other words, it did not modify the Constitution, but sus- 
pended its operation for a limited time, after which it was again 
to be in full force. 

§ 329. 3. That the Convention itself did not regard the Or- 
dinance in question as an Act of fundamental legislation, is ap- 
parent from the fact, that it did not submit it to the people with 
the amendments to the Constitution, on the 6th of June, but 
put it in operation by its own authority. If it be objected, that 
the Convention also withheld from submission to the people the 
Ordinance of January 11, 1865, abolishing slavery in Missouri^ 
clearly an Act of fundamental legislation, and that, if non-sub- 
mission indicates decisively the character of the one Ordinance, 
it ought to do so of the other, the answer is, that although the 
better course would have been to submit the slavery Ordinance, 
yet, as the Convention Act was silent on the subject of sub- 
mission, and as it expressly required the Convention to pass 
such amendments to the Constitution as they should deem 
necessary to emancipate the slaves, the cases are wholly differ- 
ent, and the objection is, therefore, groundless. In the one case, 
that body passed, but did not submit to the people, an Ordi- 
nance, which the people, through the legislature, had required it 
to pass ; and in the other it passed, without submitting to the 
people, an Ordinance which it had not been required to pass, 
and of their authority to pass which, as an amendment to the 
Constitution^ there is the gravest doubt. 

§ 330. If the action of the Convention was not in the line of 
fundamental legislation, the alternative is, that it was one of 
revolution ; for, in that case, it was one belonging to some 

1 The names of two of the judges ousted under the Ordinance, by whom 
prosecutions were brought to test its validity in the courts of Missouri. 



CAN CONVENTIONS EEMOVE FROM OR APPOINT TO OFFICE ? 313 

branch of the existing government — an Act of administration 
or of ordinary legislation, coming within the province of some 
other department. And that it was of this character is, in my 
judgment, susceptible of no doubt. 

In denying to the Convention, however, the power in ques- 
tion, it is not meant to imply, that the particular acts authorized 
by the Ordinance of March 17th were not necessary, but merely 
that they were not legal or constitutional. The Journals of the 
Convention of 1861, in the same State, are filled with evidences 
that Missouri was at that time in a revolutionary condition. 
Acts were done by that body, which were proper only for a 
strictly Revolutionary Convention, one which had assumed in 
a time of crisis, when the wheels of the regular administration 
were blocked, the functions of a provisional government. One 
of the earliest Ordinances of that Convention was one to vacate 
tJie offices of Governor, Lieutenant - Governor, Secretary of 
State, and members of the General Assembly, and, of its own 
authority, to appoint persons to exercise the duties of the first- 
named officers, until others, with a new General Assembly, 
should be elected in the November following.^ It also, on the 
same day, passed an Ordinance repealing certain Acts of the 
General Assembly, approved in the early part of the year 1861.- 
So, also, it usurped the function of a General Assembly by 
passing an Ordinance for the organization and government of 
the Missouri State Militia,^ and several Ordinances for the 
appropriation of moneys out of the State treasury.* All these 
acts were clearly usurpations of authority properly belonging 
to other departments of the State government. That that gov- 
ernment was in treasonable hands might justify the Convention, 
on moral grounds, in seizing, by revolutionary force, powers not 
its own, but could not alter the legal character of its acts. In 
1865, the same necessity perhaps existed, and, if so, might jus- 
tify acts clearly of the same general character, legally considered, 
as those of its predecessor of 1861. But, as I have said, upon 
this question I pass no opinion. If the acts characterized as 
revolutionary were strictly necessary, it was not the first time in 
history that a party, having morally and politically the better 
case, had legally the worst of the argument. 

1 Ordinance of July 30, 1861. See Journal of the session of the Conven- 
tion held in June of the year 1862, Appendix, pp. 3, 4. 

2 Id. p. 4. 3 Id. p. 7. 4 Id. pp. 18, 19. 



314 RELATIONS OF CONVENTIONS TO THE ELECTORS. 

§ 331. (c). I pass now to consider the relations of Conven- 
tions to the separate agencies or departments of the govern- 
ment, and the powers resulting to them from those relations. 
Of those departments, that which is the most numerous and 
which stands nearest in order to the sovereign, is the electors. 

By the term electors, according to the American Constitu- 
tions, generally, with which alone we are now concerned, is 
meant that body of citizens who, by the Constitution or laws of 
the State, have been invested with the rights, first, of choos- 
ing the most important administrative ^ officers of the govern- 
ment, and, secondly, of determining, by its direct vote, the ex- 
pediency of constitutional changes, and of enacting them. The 
electoral body, as already observed, is by far the most numerous 
corps of functionaries in the State. It never assembles in a 
single body, as does the legislature, but exercises its prescribed 
functions in determinate subdivisions of the public area, each 
of which constitutes an electoral circle, where alone the electors 
^resident within it can exercise their franchise. Beyond the lim- 
ited sphere of duty laid down for them in the fundamental law, 
this most important body has no power or official character 
whatever. It cannot pass an ordinary statute, or render a judg- 
ment, or execute a criminal. Its individual members, except in 
the simple act of casting their vote in the cases prescribed by 
law, represent nobody, and hence, theoretically, are entitled to 
no more weight than the still more numerous body of non- 
electors, comprising the residue of the people. But, although, 
while acting within their proper province, the electors, by their 
vote, are deemed to utter the voice of the sovereign, it is only 
the aggregate vote of the State, or what I might describe as 
the resultant of all the separate votes of its individual electors, 
which can be thus characterized, not the vote of the individual, 
or of the subordinate circle, which, as such, has generally no 
official validity whatever. 

§ 332. Within the sphere allotted to the electors in the scheme 
of government, they constitute a strictly representative body. 
But it is only one of a number of such bodies. The three ordi- 
nary departments of a government — the legislative, executive, 
and judicial — are also representatives of the same constituent, 

1 I use the word "administrative" here in its broad sense, to designate all 
officers concerned in operating the government, — legislative, executive, and 
judicial. 



RELATIONS OF CONVENTIONS TO THE ELECTORS. 315 

the sovereign. That is, the functions severally committed to 
these four systems of agencies are, in general, committed to 
them absolutely, with respect both to each other and to the sov- 
ereign ; the latter parting with the right to exercise the power, 
though not with the right to withdraw the grant, or to chastise 
those who abuse it. Because, judging from the visible opera- 
tions of government, the electors seem to be the basis of the 
entire system, they are usually denominated the i^eople. From 
this circumstance has arisen a common misapprehension, to the 
effect, that the electors are the source and possessors of all 
sovereign rights — the real sovereign. When it is considered, 
however, that this body is a variable one, the number and qual- 
ifications of those who compose it depending on the deter- 
minations from time to time of that power lying still further 
back, by whom the Constitution itself is enacted, the position 
of electoral sovereignty is seen to be untenable. The electors 
merely represent the sovereign, and are under all the conditions 
of responsibility and of limitation of power which attach to the 
departments at the next remove from the source of sovereignty, 
generally denominated the government. 

§ 333. To determine the relations of Conventions, in general, 
to this primordial body of functionaries, let us first recall the 
genesis of the former. Conventions, as we have seen, are 
bodies chosen by the electors, at the instance of the legislature. 
They are thus, in one sense, the offspring of those two govern- 
mental agencies. But, on a broader view, they are to be re- 
garded as the appointees of the sovereign itself. It is only 
through agents that the latter can act, and hence there is no 
system of functionaries amongst all those organized in a State, 
that, if considered with reference to its immediate source and 
origin, is not the child of the government of that State. They 
all depend upon each other, and run more or less into each 
other, trenching upon each other's power and jurisdiction. Still, 
in case of some of those agencies, it would not be denied that 
they are selected aiid commissioned by the sovereign, and if 
some, so, virtually, are they all. So far, then, as the genesis of 
Conventions is concerned, they must be set down as bearing to 
the electors substantially the same relations as does a legislature. 
It is a creature of the same political society, acting, as it can 
only act, through some one or more of its accustomed organs. 



316 CAN CONVENTIONS DISFEANCHISE ELECTORS? 

§ 334. Secondly, to determine the relations of Conventions 
to the electoral body, we must take into view their relative 
functions. The normal conception of the Convention is that of 
a body appointed by the sovereign to mature a scheme of fun- 
damental law, to be submitted to that sovereign for ratification 
or rejection. But the sovereign neither on the one hand ap- 
points, nor on the other ratifies or rejects, by its direct action. 
These exercises of sovereignty it can perform only through 
agents, and for that purpose it employs the electors, as being the 
most numerous, the most disinterested, and the nearest to itself, 
of any in the Commonwealth. Hence it follows, I think, that 
although in respect of their common origin from the sovereign, 
the Convention and the electoral body may be considered as in 
a certain sense coordinate, they are nevertheless, in another re- 
spect, to be ranked as unequal. A sort of primacy must be 
conceded to the electors, since, so far as the work of the Con- 
vention is concerned, they wield the actual sovereignty ; for it 
is they who pass upon it, enacting it or otherwise, as to them 
seems best. Thus the electors stand between the Convention 
and the sovereign, whose rays of power they intercept and 
gather into a focus of their own. In a word, then, the Conven- 
tion stands related to the electoral body thus : in point of origin, 
so far as other parties are concerned, they are coordinate, as 
both deriving their existence from the same source of power, 
the sovereign ; but, with respect to each other, the electors are 
the more dignified and the more nearly sovereign body, since 
they receive their appointment directly, through the Constitu- 
tion, from the sovereign, whilst the Convention receives it from 
the sovereign indirectly, through the same electors, to whom 
also it is bound to submit the fruit of its deliberations for ap- 
proval or disapproval.! 

§ 335. In the light of these principles, it will not be difficult 
now to furnish answers to such questions, depending on the rela- 
tions just explained, as it may be useful to discuss. 

1. Of these, the first which I shall consider is this : Can a 
Convention disfranchise any part of the electoral body ? 

This question may receive two different constructions. It 
may mean, Can a Convention, by virtue of its ordinary com- 
mission — to recommend, not to enact, constitutional changes 
1 For an exposition of this duty see post, Chapter VII. 



TRUE THEORY OF SUFFRAGE. S17 

— divest of the electoral franchise, by its direct action, any per- 
son (|ualified as an elector by the existing Constitution ? In this 
sen^e, it is evident, the power does not exist, for reasons similar 
to those already given, in considering the power of a Conven- 
tion to make removals from office. The question, on the other 
hand, may mean, Can a Convention effect the disfranchisement 
of subsisting electors by an indirect proceeding, as by constitu- 
tional provision, altering the qualifications for the exercise of the 
suffrage ? This is a question of more difficulty. If the so- 
called " right of suffiage" is a natural right, and not a mere 
delegated power or duty, it is clear, that a Convention cannot 
rightfully divest of it persons coming within the limits by which 
it is defined. But if, on the contrary, it is no right at all, by 
nature, but rather a function or office, with which certain desig- 
nated classes are charged by the sovereign, for its own purposes, 
it is equally clear, that, for what are deemed sufficient reasons, 
the charge may be withdrawn. In that case, inasmuch as the 
Convention is the agency through which the sovereign either 
effects constitutional changes or initiates them, reserving to 
itself, through the electors, the enactment of its recommenda- 
tions, it follows that that body may, according to the terms of 
its commission, either withdraw or recommend the withdrawal 
of such charge. 

§ 336. Which, then, is the true theory of the suffrage ? Is its 
exercise that of a natural right, or is it merely the performance 
of a duty, resting simply upon positive law ? The answer to 
this question can be based only upon presumptions, and, judg- 
ing by them, suffi-age is not a natural right. In the first place, 
there is the presumption arising from the fact, that no political 
community has ever existed in which the right to vote has been 
conceded to be the natural right of all the citizens. I mean, 
conceded, not as a matter of speculation, but as one of practi- 
cal administration. This is believed to be true in the ancient 
democracies, as it has been in those modern governments, in 
which circumstances have enabled their founders to carry into 
effect most perfectly the theory of equal rights. In the cabin 
of the Mayflower it was the Pilgrim fathers, not the Pilgrim 
mothers, who framed the first Puritan commonwealth. In the 
second place, there has never been an instance, it is believed, in 
which a State, whatever its theories of the suffiage may have 



t 



818 TRUE THEORY OF SUFFRAGE. 

been, has not somewhere drawn a line of exclusion from its 
actual exercise, and drawn it, too, above the point which marks 
the extreme limit of practicability. In other words, no common- 
wealth, based upon popular suffrage, or admitting its exercise 
at all, has ever allowed it to the utmost extent that was practi- 
cable under the circumstances. Finally, suffrage, considered as 
a natural right, would be universal suffrage ; and universal suf- 
frage is an utter impracticability. For, admitting the force of 
the argument which attributes, by the law of nature, an equal 
right to vote to every citizen, nevertheless, when the statesman 
comes practically to establish the right, insuperable difficulties 
arise. Some are too weak or too young to exercise it at all, 
or with the requisite intelligence. A line must be somewhere 
drawn. Where it shall be drawn is a question of expediency, 
to be determined by the existing government, like any other 
measure involving mixed questions of justice and of policy. 
The principle of exclusion being once established, whether it 
shall be confined to considerations of age, or be extended to 
those of sex or social condition, is a matter of practical detail 
to be settled by the political power. 

§ 337. The " right of suffrage " comes thus to be practically 
only a right of one man to represent many other men. Over- 
looking the absurdity of such a right, if asserted as a natural 
right, it comes at once into conflict with another right existing 
equally by the law of nature — the right of the State to deter- 
mine who shall and who shall not discharge a function, which 
not all citizens can discharge. But a right of one man to do 
that which another has an equal right to prevent him from 
doing, is either a solecism or it is a right which subsists only 
upon conditions to be determined by that other ; in other words, 
a right which is such only when it rests on some positive law 
ordained by that other. 

Thus viewed, it is evident, that in the present condition of 
mankind, in which, for the public good, the principle of exclu- 
sion must be exercised, there is no such thing as a right of suf- 
"•frage. Suffrage is not a right at all; it is a duty, a trust, en- 
joined upon, or committed to, some citizens and not to others. 
The only rights connected with the exercise of the suffrage, are, 
first, the right of the commonwealth, the collective body to be 
administered, for good or for evil, by the electors, to determine 



CAN CONVENTIONS FILL THEIR OWN VACANCIES ? 819 

who those electors shall be ; secondly, the right of every citizen, 
without distinction, derived to him through the commonwealth, 
to be fairly and adequately represented by the electors. 

The conclusion at which I arrive then is, that a Convention 
may, by constitutional provision, effect the disfranchisement of 
existing electors. Of course, with the question of the policy 
of doing so, in any case, I do not concern myself. 

§ 338. 2. Another question is. Can a Convention take upon 
itself the function of the electors to fill vacancies in its own 
ranks ? This is substantially the same question before discussed 
in relation to the power of that body to fill vacancies in the ordi- 
nary departments of the government,^ and should receive the 
same answer unless a different one ought to be given, because, in 
the case of appointing to an executive or judicial office, it would 
wrongfully assume the relation of electors to a third body, and 
in the other case, that of electors to itself. In the case last sup- 
posed, the Convention would be ^jro tanto self-appointing, and 
would maintain the attitude of at once constituent and delegate, 
which is that of a body de facto sovereign. So that the two 
cases would differ, but only in the degree of their common im- 
propriety ; the exercise by a Convention of the power to fill 
its own vacancies being far more unwarranted and dangerous 
than that of filling vacancies in other departments, as it would 
more flagrantly violate that system of mutual checks which is 
so indispensable to the safe action of popular institutions. It is 
evident, that of all possible checks, the most effectual, amount- 
ing practically to the power of complete control, is that of 
selecting the persons to constitute the body. This power it will 
never do for the electors on any consideration to resign. 

§ 339. 3. The principles just settled enable us to answer 
another question, namely, Can a Convention authorize the col- 
leagues of resigning or deceased members to name their succes- 
sors ? It is clear that, on general principles, what a Convention 
cannot do as a whole, it cannot authorize any of its members to 
do. But suppose, as was the case in the Virginia Convention 
of 1829, the Act of the General Assembly, under which the 
body convened, contained a special authorization to fill vacan- 
cies in that manner, could it then be allowed by the Conven- 
tion ? The answer must depend on the power of the legisla- 

1 Ante, § 325. 



320 CAN CONVENTIONS FILL THEIR OWN VACANCIES? 

ture to make such a provision, of which, to say the least, there 
is much doubt. The matter lies in a nutshell, thus : Where 
Constitutions have given to legislative bodies power to call Con- 
ventions, and have specified the electors of delegates thereto, 
they have with great uniformity named the persons qualified to 
«rote at the general State elections.^ Where no constitutional 
provision has existed governing the case, the same class has 
usually been designated by law^^ Such has been the practice. 
Theoretical principles indicate with the utmost clearness that no 
other class could properly be permitted to act as electors in such 
a case. Could a legislature itself name the delegates to con- 
stitute the Convention ? That would be to make of itself the 
people^ to violate all the analogies of our republican system, and 
to trample under its feet the safeguards of our liberties. For, 
if it could appoint the delegates, it might name a committee 
of its own members, or of others, small in number, and likely to 
be equally, in either case, subservient to the power which cre- 
ated it. A Convention thus composed would virtually be but 
the legislature itself, which would in that case possess the un- 
controllable powers of the English Parliament, those, namely, 
of constructing the government, and then of regulating its ad- 
ministration. It cannot be, then, that a legislature has power 
to remit the election of conventional delegates in the first instance 
to any body of persons but the electors. And if not in the first 
instance, it is equally doubtful whether it could do it afterwards 
to fill vacancies. These ought to be filled by the constituencies 
left unrepresented, which are not the colleagues of the retired 
members, but the electors in the proper districts. These con- 
siderations are confirmed by the observation that exceptional 
modes, even if convenient, cannot in any high sense of the 
term be said to be necessary. The absence of a delegation 
is not likely to be a very serious evil, in case no provision by 
law for calling a new election has been made in a form that is 
free from objection, and if the power to order one without such 
a law be doubted. 

§ 340. 4. If a Convention cannot, when vacancies occur in 

its ranks, fill them itself, or authorize or permit a part of its 

members to fill them, can it issue precepts to the constituencies 

of the retired delegates directing new elections to fill them ? 

1 See ante, §§ 262, 263. 2 Ibid. 



CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS ? 321 

This question touches to the bottom the powers of Conventions 
in relation to the electoral bodies which depute them, and will 
therefore be considered at length. It arose as a practical ques- 
tion in the Massachusetts Convention of 1853, and I cannot, 
perhaps, better illustrate the principles by which it ought to be 
decided, than by presenting an outline of the facts of that case, 
and of the discussions which it elicited. 

§ 341. The Hon. Henry Wilson having been elected a dele- 
gate for both the town of Natick and the town of Berlin, chose 
to sit for the former, whereupon an order was passed that a no- 
tice be given by the Secretary of the Convention to the town 
of Berlin, that the Hon. Henry Wilson, who was returned as a 
delegate from that town, declined to act in that capacity. There- 
upon the Hon. B. F. Butler submitted a form of a notice to be 
sent by the Secretary, as follows : — 

" Hall of the Constitutional Convention, 7 
" Boston, May — , 1853. i" 

" To the Selectmen of the Town of Berlin : 

"Gentlemen, — The Hon. Henry Wilson, late delegate for 
Berlin in the Convention for revising the Constitution, having 
tendered his resignation as such delegate, which has been ac- 
cepted by the Convention, and his seat being thereby vacated, 
I am directed, by a vote of the Convention, to request you to 
convene the qualified electors of your town, as soon as may be 
with a due regard to notice, in order to their electing and deput- 
ing a delegate to represent them in this Convention, in the man- 
ner prescribed by the second section of the Act calling the Con- 
vention, adopted by the people on the second Monday in No- 
vember, A. D. 1852. 

I am, &c.'' 

[Signed by the Secretary.] 

This form involved an evident departure from the principle of 
the order just adopted, inasmuch as it contained an assertion 
of a threefold power in the Convention, of which no trace 
was to be found in the order : first, a power to direct, or at 
least to request, the town authorities, and through them the 
electors, to exercise their electoral function at a particular time, 
and upon a particular subject ; secondly, the power to accept 

21 



322 CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS? 

the resignation of delegates duly elected to its own body ; and, 
thirdly, the power to direct the electors as to the manner in 
which they were to proceed to elect their delegates to the Con- 
vention, as, that it should be done in conformity to a particular 
Act of the legislature. 

§ 342. The question being upon the adoption of this form, a 
substitute was moved, that in notifying the town of Berlin of 
the vacancy, the Secretary be directed to forward to that town 
a certified copy of the order adopted by the Convention upon 
• that subject. This substitute was rejected, and the form pro- 
posed by Mr. Butler adopted, opposition being made at every 
step, on the ground that it was beyond the power of the Con- 
vention even to notify the town of the vacancy, much more to 
direct the election of a delegate to fill it. On the following 
day a reconsideration of the last vote was moved, upon which 
arose a very long and interesting discussion of all the questions 
involved, but ending finally in a vote of nearly two to one re- 
fusing to reconsider the vote adopting the form of notice pro- 
posed by Mr. Butler. 

Of the three questions indicated as involved in the form of 
notice adopted, the first, as to the power of a Convention to 
issue a precept, request, or notice to a town, with a view to in- 
duce it to fill a vacancy in its delegation, is the only one I pur- 
pose here to consider. 

§ 343. That the Convention possessed the power to issue 
such a precept was claimed by Mr. Butler and others, as evi- 
dent from the nature and functions of that body. 

Thus, in favor of the form of notice presented by him, Mr. 
Butler said : — 

" We are told that we assume the power, and that we are 
merely the agents and attorneys, of the people. Sir, we are the 
delegates of the people, chosen to act in their stead. We have 
the same power and the same right, within the scope of the 
business assigned to us, that they would have, were they all 
convened in this hall. In my judgment, we have every inci- 
dental power necessary to do the business of the people. If the 
people were all assembled here in their primary capacity, they 
would surely have the capacity to notify umepresented towns, 
that they might participate in the business of the Convention ; 
and, by implication, we have just the same powers, duties, and 



CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS? 323 

necessities, no more and no less, conferred upon us, that the 
people would have were they here in their primary capacity. 
We are not acting as a court of referees. The power with 
which we are vested comes not from the legislative government ; 
but the people, through the agency of the ballot-box, have given 
it to us. We are not men who have no interest in the matter, 
but have all the powers of the people whom we represent. If 
they chose, being assembled in their primary capacity, to add to 
their number by admitting a portion of the people at first not 
assembled with them, could they not do it ? And, if they now 
see fit to send men to act with us, have they not the power to 
do it ? I look upon this whole proceeding of calling a Conven- 
tion as a mode of revolution by which we may peaceably ac- 
complish that which in other countries is attained by the sword 
and by force. Here, through the medium of the ballot-box, the 
people take to them.^elves the supreme control of the whole 
machinery of the government, and they determine who shall 
come here 'and act for them." ^ 

§ 344. On the same side, professedly, but shifting the ground 
assumed by Mr. Butler, if not, in substance, surrendering the 
power claimed by him, Mr. B. F. Hallett said : — 

" Speaking strictly with reference to the authority under which 
this Convention is assembled, I confess that I have great doubts 
whether the Convention has power to send to any town an or- 
der or a direction in the form of law, calling upon them to send 

a member to this Convention Taking this question as 

the issue, as to the power of the Convention, it resolves itself 
entirely, in my mind, into the simple power of a body to repro- 
duce itself — that is, to fill vacancies occurring within itself by 
death or resignation ; and whether that power be or be not inci- 
dent to such a body, is a matter which may admit of different 
opinions, but with regard to which, it seems to me, the prepon- 
derance of opinions must be, that, in the absence of a prohib- 
ition to fill such vacancy, and where no mode is provided by 
law, the body must necessarily have the power to supply such 
deficiency— J that is, to reproduce itself. In this point of view, 
therefore, the resignation of a delegate, causing a vacancy, 
would stand differently from a call upon towns to send dele- 
gates here in cases where no vacancies had existed except such 
1 Deb. Mass. Conv., 1853, Vol. I. p. 78. 



324 CAN CONVENTIONS ISSUE PEECEPTS DIRECTING ELECTIONS ? 

as arose from a mere failure of a town to elect a delegate. I 
should be content, therefore, to take this proposition as a proper 
one, and invite the town of Berlin to send a delegate here, 
upon the ground that we as a body have a right to fill our own 
vacancies, occurring since our organization as a body ; and that 
is all the power we have got, if we have got any, in the pre- 
mises. I am perfectly clear that we have no direct power under 
the Convention Act of 1852, in relation to supplying any vacan- 
cies in this Convention. That is our charter ; it is the Consti- 
tution of this body of delegates, and we must act under it." ^ 

§ 345. To these argaments, so discrepant in their principles, 
the Hon. Marcus Morton replied as follows : — 

" We are a delegated body ; if we have any authority it has 
been delegated to us. We are the agents or the attorneys of 
the people of this Commonwealth, and. if we have any power 
at all, it comes from them, and is contained in the power of 
attorney which authorizes us to come here. If we have the 
power or authority to act in this matter, let any gentleman put 
his finger upon the passage in the Act and point it out. And, 
if the authority cannot be found, then where do we get it ? In 
acting upon this subject we should be assuming power which 
has not been delegated to us. It would be a downright usurpa- 
tion, and it would be more than a usurpation of power by a 
legislative body, because there is nobody behind us to make it 
right. There is no way of correcting the evil. If gentlemen 
assume the power to act in this matter, — if the Convention is 
to send out precepts for new elections, and to admit individuals 
who may be chosen in this manner, they may assume power to 
send for the Common Council of the City of Boston, and bring 
them in here to act with us and to participate in our delibera- 
tions, and nobody can countervail, — nobody can set it aside. 
.... If we have power to act in this case, it is contained in 
the Act by which we are convened ; and now I ask gentlemen 
to point out the power in that Act. I can find a strong indi- 
cation that no such power was intended to be given. AH that 
has been brought to show the existence of such q, power has 
been drawn from precedent and the practice of other bodies." ^ 

§ 346. To the same effect was the speech of Hon. Joel 
Parker. He said : — 

1 Deb. Mass. Conv., 1853, Vol. I. p. 131. 



CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS ? 325 

" And now two questions seem to arise. One is, whether 
any action can rightfully be taken for the purpose of fiUing the 
vacancy, and having another delegate elected to represent the 
town of Berlin ; and, if such action may be taken, the question 
occurs upon the form, whether it should be by a writ, or by a 
notice, that we will admit the delegate whom the town shall 
elect, and who shall present himself here, claiming the right to a 
seat by virtue of that election. In relation to this last question 
I have no difficulty. So far as the mere form is concerned, it 
seems to me to be altogether immaterial. I have not been per- 
suaded by the remarks of the gentlemen who have preceded me, 
that it would not be competent, if a vacancy exists which can 
rightfully be filled, for the Convention to issue a writ or precept 
to the town of Berlin to elect a member ; but a mere notice to 
that town that a vacancy exists, would be equally effective of 
that object, in my opinion. If the town of Berlin have a right, 
upon the resignation of their delegate, to proceed to a further 
election, they would have the same right upon receiving a 
notice that a delegate coming here and claiming a seat in the 
Convention would be admitted as a matter of right. And, if a 
writ should be issued, I do not understand that it would confer 
any power upon the town ; it would be nothing more than 
issuing a precept in that particular form, to signify to the town 
that they might elect, and that their delegate would be ad- 
mitted when he presented himself. We are to consider this 

question, Mr. President, solely as a question of right But 

as it comes to us as a question of right, we are called upon to 
determine what the right is. 

" If we are in a state of revolution, — peaceful and bloodless, 
but still a revolution, — I must say that I know not what limit 
there is to the power of a revolution, when it is brought into 
exercise ; and, if the question is to be put upon that basis, . . . 
I shall not deny the power of a revolution. The town of Ber- 
lin may be represented, and anybody else may be admitted as a 
delegate whom the people may choose to send here. If we are 
a revolutionary body, acting without a Constitution, or any 
thing of that nature to guide us, — if citizens are to come here 
and act their pleasure, without regard to the manner in which 
they are proceeding, they may admit one person or another to 
1 Deh. Mass. Conv., 1853, Vol. I. p. 74. 



326 CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS? 

take part in that revolution. The whole community may take 
part in it, and the question would come up, Where are you to 
find room for them to assemble and carry on their operations ? 
Sir, it is well known that the argument has been advanced that 
this Convention was revolutionary in its character, because the 
Constitution provided no such mode in which a Convention 
could legally assemble ; that there was one mode provided by 
the Constitution for the revision of that instrument, and any 
other mode was in its nature revolutionary. For myself person- 
ally, I do not entertain that opinion. I believe this Convention 
to have been lawfully assembled, and that it is bound to pro- 
ceed according to law; and that, when it departs from law 
knowingly and understandingly, then will its proceedings be 
revolutionary in their nature." ^ 

§ 347. To this discussion I shall add but a single observation. 

Supposing the power in question not to have been given ex- 
pressly in the Act calling the Convention, and looking at the 
question of right alone, has a Convention, by virtue simply of its 
essential nature and functions, power to issue precepts to the 
electors in the case of a vacancy, directing an election to fill it ? 
It certainly has no such power, unless we invert all our concep- 
tions of the office and relations of the two bodies. To accord 
that power to a Convention, in such a sense as that its mandate 
would be binding on the electors, is to suppose the former to be, 
if not sovereign, an agency of the sovereign with general dis- 
cretionary powers of a legislative character, beyond the scope of 
its special business^ to be, in short, strictly a legislature. On 
the contrary, as we have seen, both reason and authority concur 
in assigning to the Convention a particular function, limited. by 
the Act under which it convenes, which is its charter or Con- 
stitution — a peculiarity of that body which will be more fully 
illustrated in a subsequent part of this chapter. If this be a 
correct estimate of the nature of Conventions, the remark of 
Judge Parker is just, that it is essentially immaterial what form 
the precept or notice to the town might assume. It might be a 
writ directing, or a notice requesting, that an election should be 
held to fill the vacancy in its ranks. But in neither form would 
it be of the least binding force. It would be, in substance, 
merely an extra-official intimation that the Convention would 
1 Deb. Mass. Conv., 1853, Vol. I. p. 83. 



ELECTIONS TO FILL VACANCIES. WHEN AND HOW TO BE MADE. 327 

acquiesce in whatever action the electors should deem them- 
selves authorized to take. The real power, if it existed at all, 
would be in the electors, and would find its source in the exist- 
ing Constitution and laws, and not in the mandate of the Con- 
vention. 

§ 348. 5. It being determined that if a vacancy can be filled 
at all, it must be done by the electors, by virtue of power de- 
rived not from the Convention, but from some other agent of 
the sovereign, as the legislature, the next question — seemingly 
unrelated to the subject of this treatise, but necessary to a com- 
plete discussion of the question next following — is. Can the 
electors fill such a vacancy at any time and in any manner they 
may think fit, or must they look to the law for their power to 
act, and consequently conform strictly to its provisions ? 

If we have not 'mistaken the relations of the electors to the 
sovereign, and to the several agencies employed by the sover- 
eign to conduct the government, it is clear that little discretion 
is left to them in the discharge of their functions, except as to 
the individuals whom they shall, within legal limits, select to fill 
the offices of the State. Their duties are always prescribed by 
the Constitution, or by some statute passed in pursuance of it, 
as that, on such a day or days, the electors shall assemble and 
choose citizens, having determinate qualifications, for particular 
offices or duties. In obeying this mandate they discharge a 
trust. To allow them to enlarge or vary the terms of the trust 
would be to subvert the relations of dependence imposed by the 
Constitution, and to invest them with the power of self-direc- 
tion — that is, measurably, of sovereignty. To some of the 
agencies of government, the sovereign, indeed, gives large dis- 
cretionary powers ; but then those powers are of the essence of 
the grant, and not to use them would be to frustrate the purpose 
of the political society which made it. The grant of legislative 
power is a grant of that kind. With the electors the case is 
different. Their functions, as we have seen, are twofold : first, to 
elect persons, generally of their own number, to office ; and, sec- 
ondly, to pass, affirmatively or negatively, upon proposed changes 
in the fundamental law. In the latter, which is an occasional 
function, they are invested with a limited discretion, a discretion 
either to approve or reject ; in the former they have no discre- 
tion as to measures, but only to name, out of the whole body of 



328 ELECTIONS TO FILL VACANCIES. WHEN AND HOW TO BE MADE. 

eligible citizens, those who are to fill the public offices. And it 
is apparent that they could not safely be intrusted with any 
greater power. Never assembling en masse, but exercising their 
functions in isolated fragments, without concert or intercon- 
nection, their determinations could have coherence and efficacy 
only when made in subordination to a less numerous body, pos- 
sessed of adequate powers of looking before and after, of delib- 
eration, as well as of announcing authoritatively the sovereign 
will. Such a body only is the legislature, to which, in the ab- 
sence of constitutional provisions, is committed the duty of per- 
forming that very office. 

§ 349. Now, to apply these principles practically, take the 
case of the Massachusetts Convention of 1853, last referred to. 
The Act of the legislature calling that Convention, provided, as 
such Acts commonly do, that the inhabitants of the cities and 
towns within the State entitled to vote for representatives to the 
General Court, should assemble on the first Monday of March, 
A. D. 1853, and elect one or more delegates, &c.. Sec. 1. ; and that 
" the persons so elected delegates " should meet in Convention in 
Boston on the first Wednesday in May, &c.. Sec. 3. Under 
this Act, would any delegates, not " so elected," be entitled to 
seats in the Convention ? Evidently not. But what is com- 
prised in the terms " so elected ? " The answer, it seems, should 
be, " elected at the time and place, in the manner, out of and by 
the class of persons respectively prescribed in the Act." If, in 
regard to any one of these particulars, as, for instance, the time 
of holding the election, any departure from the Act be allow- 
able, who is to determine when the electors in their several dis- 
tricts shall meet ? Must the meetings in the several towns and 
cities, if held on another day than that appointed in the Act, be 
called or " notified " by the public authorities in the same man- 
ner as the regular meetings ? If so, how can this necessary 
preliminary be secured ? The public authorities might, in some 
places, in the absence of positive instructions by law, refuse to 
act. Would such a refusal be a breach of official duty ? That 
could hardly be maintained, since, if the time were not fixed by 
a law binding upon all, or were fixed by a law whose terms 
could be disregarded, it must be because the time of holding 
the meetings was intended to rest in the discretion of those 
authorities, and they ought not to be blamed for exercising it. 



CAN CONVENTIONS RECEIVE DELEGATES IRREGULARLY ELECTED ? 329 

An objection of scarcely less magnitude would be, that if elec- 
tions were to be called at the discretion of the town or city 
authorities in respect to the time of their assembling, as each 
might act independently, the electors would be likely to assem- 
ble on different days, and thus render abortive some of the most 
important safeguards of the elective franchise. 

Again : when an election has once been held according to the 
terms of the Act, the power of the electors has been exhausted. 
It is impossible to hold that they may, on any accident giving 
rise to a vacancy in the office filled by them, of their own mo- 
tion reassemble to fill it again. If, on the other hand, at the 
time and place appointed for the election, they failed to exercise 
the power given by the Act, how can it be contended that they 
may, at their will, attempt to repair the deficiency in their repre- 
sentation ? Such a proceeding would most clearly be an abuse 
of their position and power as electors. In a word, the difficul- 
ties attending the allowance of spontaneous and unconnected 
elections, at the instance of the local authorities, without the 
authorization of law, are so great, that the right of the electors 
to hold them must be wholly denied. 

§ 350. 6. Another question, related to the foregoing, is. Can 
a Convention receive, as lawful delegates, persons elected at a 
time or in a manner not provided by law ? K we have suc- 
ceeded in reaching sound conclusions in relation to the questions 
thus far discussed, the answer to this is at hand. If the Con- 
vention cannot itself fill its own vacancies, and if the electors 
cannot, without special authority of law, or cannot in contra- 
vention of law, fill them, the former would have no power to 
accept as lawfully elected delegates persons unlawfully elected 
by the latter. Two bodies of functionaries cannot, by clubbing 
their separate usurpations, give a legal character to what is 
otherwise illegal. The Convention is usually, by the Act calling 
it, or by the customary law of such bodies, made the judge of 
the elections of its own members ; that is, it is authorized to 
pronounce on the conformity to law of the proceedings by which 
its ranks are filled ; a power which, of course, leaves to it prac- 
tically a large discretion ; but that discretion is, like that of a 
judge, a legal one, not its arbitrary will. When a delegate, 
therefore, presents himself and claims a seat, if he cannot ex- 
hibit evidence of his having been elected according to law, he 



330 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS ? 

ought to be rejected. The Convention owes to the electors no 
such courtesy as to wink at their usurpations of power. 

§ 351. 7. The next question, involving the relations of Con- 
ventions to the electors, is, Can a Convention limit the discre- 
tion of the electors in the discharge of their appropriate duties ; 
as, by determining what classes of persons they may, and what 
classes they shall not, elect to office ? 

This question might have been discussed appropriately in a 
preceding part of this chapter, in which were considered the 
relations of Conventions to the sovereign. Indeed, it has very 
often been put in this form : Can a Convention limit or restrict 
the sovereign in the choice of its servants, as by requiring that 
they shall be citizens of a prescribed age or nationality, to be 
eligible to office ? 

We will consider the question in both the forms indicated, 
beginning with the latter. 

First. Can a Convention restrict the sovereign in the choice 
of its servants ? Strictly speaking, the question is absurd. The 
Convention is but a subordinate, whilst the sovereign is the 
superior, from whom is derived all its power to act, and without 
whose ratifying voice what it does is wholly destitute of validity. 
The one is a mere agent, with power only to do what it is bid- 
den ; the other, the supreme source of power in the state, able, 
within the limits certainly of a moral competence, to do any 
thing it may please. Of course, then, a Convention cannot 
really, to any extent, bind the sovereign. It may recommend 
constitutional provisions, which, if adopted and put in force by 
the sovereign, will bind the latter, so far forth as it can be bound 
at all, but in that case it would be the sovereign which would 
limit or restrict itself, not the Convention which would bind it. 
And that the sovereign can limit or restrict itself is a well-set- 
tled principle. The bonds, however, by which it can bind itself, 
are doubtless only moral ones, since under whatever limitations 
the nation may have placed itself by voluntary regulation, it 
has evidently at all times the physical ability to disregard them. 
In one view, however, those bonds are of immense practical 
efficacy ; it is only the sovereign body which can disrupt them 
with impunity. Its servants, the various departments of the 
government, are obliged to respect them or render themselves 
obnoxious to punishment for disobedience. As an admirable 



CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 331 

exposition of the truth that the sovereign body can restrict itself, 
I extract a passage from an argument made by Daniel Web- 
ster, in the celebrated case of Luther v. Borden, in the Supreme 
Court of the United States.^ 

He said : " I have said that it is one principle of the Ameri- 
can system that the people limit their governments, National 
and State. They do so ; but it is another principle, equally 
true and certain, and, according to my judgment of things, 
equally important, that the people often limit themselves. They 
set bounds to their own power. They have chosen to secure 
the institutions which they establish against the sudden impulses 
of mere majorities. All our institutions teem with instances of 
this." After specifying the 5th Article of the Federal Constitu- 
tion, restricting the right of the people to amend that instru- 
ment, he continued : " But the people limit themselves also in 
other ways. They limit themselves in the first exercise of their 
political rights. They limit themselves by all their Constitu- 
tions, in two important respects : that is to say, in regard to the 
qualifications of electors, and in regard to the qualifications of 
the elected. In every State, and in all the States, the people 
have precluded themselves from voting for everybody they might 
wish to vote for ; they have limited their own righi ol choosing 
.... They have also limited themselves to certain prescribed 
forms for the conduct of elections. They must vote at a partic- 
ular place, at a particular time, and under particular conditions, 
or not at all." 

§ 352. Secondly. Taken in the other form, namely. Can a 
Convention restrict the electors as to the persons they shall 
choose to fill the public offices ? the question, on the principles 
before announced, is too clear for argument. Since, whatever a 
Convention should regularly do by recommending to the sover- 
eign, if adopted by the latter, would be the act of that sovereign, 
it certainly might restrict the choice of public servants to be 
made by the electors to any class it might deem best fitted for 
that duty. As the sovereign is distinct from the electors, who, 
like all officers of the government, are its agents, it may of 
course dictate law or rules of action to them as to the others, 
and it can without doubt do it through a Convention. But the 
reservation must be again made, that in affirming that a Con- 

1 7 How. R. 1, contained in Vol. VI. of Webster's Works, pp. 217, 224. 



332 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 

vention has power to limit or restrict the electors, it is meant 
that it may do so by constitutional provision, enacted according 
to the principles of our Constitutions; that is to say, by the 
Convention recommending it, the fiat being left to the people, 
or by the Convention alone enacting it directly, as its commis- 
sion should determine. 

§ 353. In one or other of its two forms, this question has sev- 
eral times been made the subject of discussion in our Conven- 
tions. It was very ably considered, upon abstract principle, in 
the New York Convention of 1846, and I deem it of sufficient 
interest to warrant me in giving a few extracts from speeches 
made in that body upon the different sides of the question. A 
section had been proposed to be embodied in the new Constitu- 
tion, by which eligibility to the office of Governor was to be 
confined to citizens of the United States, thirty years of age, 
who should have been five years resident in the State prior to 
their election. Opposition was made to it on the grounds, first, 
that it was improper or inexpedient ; and, second, that it would 
prove futile, inasmuch as the sovereign could not be bound by 
such restrictions. 

Upon the general question, Mr. Charles O'Connor said : " Let 
us, however, for a moment, recur to principle, and see whether 
there is a propriety in retaining any of these qualifications. In 
every democratic state, the constituent body is the supreme 
power, and in it repose all the powers of government that men 
can legitimately exercise over themselves or others. In such a 
state, it is the province of the fundamental law to ascertain 
what persons shall form the constituent body or governing 
power in the state, and then to limit and define, with as much 
exactitude as practicable, the powers and duties of the agents 
of the people, or, in other words, the several departments of the 
government, to the end that the rights of individuals may suffer 
no detriment from their exercise. It was the proper province 
of such an instrument," he repeated, " to ascertain the constitu- 
ent body, in which resided the supreme power. In the nature 
of things, that body never could embrace all within the protec- 
tion of the state, and who were to be governed by its laws. 
Some must be too young to participate in the governing power. 
Others, again, too advanced in life to take part in it. It was a 
question whether females should constitute part of the governing 



CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS ? 333 

body. It was a proper subject of consideration whether persons 
convicted of crime shall be permitted to form part of the govern- 
ing body. It was a proper subject of consideration whether par- 
ticular classes of persons — he would mention negroes, Indians, 
aliens, and, if you pleased, naturalized citizens — should form 
part of the constituent body. And, in laying down rules for de- 
termining who were the constituent body, we did not lay restraints 
on the people — we only ascertained who the people were. And, 
having ascertained that, it was a principle not to be departed 
from, that in a democratic form of government no restraint 
should be laid on them in their sovereign capacity, where the 
whole people acted for the purposes of the government. This 
doctrine was quite consistent with the existence of provisions 
declaring what persons should be eligible from a particular pre- 
cinct to the Senate or Assembly; for a portion was not the whole 
people, and where power was thus delegated to a portion of the 
people to elect a member of Assembly, who might enact laws 
affecting the interests of the whole, the latter having no other 
check on the election in the precinct or district, might rightfully 
retain the selection to individuals having prescribed qualifica- 
tions. What restraints ought to be imposed in such cases was 
another question. But, when we come, as in case of the Gov- 
ernor, to an election in which all participate, an exercise of the 
power of choice by the whole people, acting in their sovereign 
capacity, every one of the constituents or governing body hav- 
ing a vote, he insisted that no restraint should be imposed. The 
field of selection should be free and unrestricted." ^ 

§ 354. On the other hand, the very evident fallacies contained 
in this reasoning were ably exposed by Mr. Ruggles, Mr. Mar- 
vin, and Mr. Porter. The last-named gentleman, after showing 
that the right of suffrage and of eligibility to office are derivative 
and not natural rights, adverting to the argument of Mr. O'Con- 
nor, said : — 

" I submit to that gentleman, that in his argument there was 
a fatal fallacy. The gentleman says it is our right to deter- 
mine who the people are, by fixing the qualifications of electors. 
That, having determined who the people are, we cannot re- 
strict their power to elect. Sir, the electors are not the people. 
They are only a part of the great whole. The people comprise 
1 Deb. N. Y. Conv., 1846, p. 201. 



384 CAN CONVENTIONS LIMIT THE DISCRETION OP THE ELECTORS? 

all. You have a Bill of Rights to protect them in the enjoy- 
ment of life, property, and liberty. Does this extend only to 
qualified electors ? No, but to every man, woman, and child 
within the dominion of your laws. These constitute the peo- 
ple, and we are their representatives. The gentlemen deny our 
right to restrict any thing but delegated power. Why, sir, the 
power of the electoral body itself is a delegated power ; not in 
form, but in effect i — by the necessity of the social compact. 
We were elected only by qualified voters. But we are the rep- 
resentatives of all. Those electors themselves were but the 
representatives of the people. Four hundred and fifty thousand 
electors act for two millions and a half of citizens. Nay, more ; 
two hundred thousand electors may constitute a plurality. Shall 
those two hundred thousand — a minority even of the electoral 
body — without restriction or barrier, select whomsoever they 
please to rule over two and a half millions of freemen ? We 
have a female population of one million two hundred and 
ninety-three thousand, — three times the number of your whole 
electoral body. They have as deep an interest in this govern- 
ment as you, — nay, a deeper interest. If your laws prove dan- 
gerous to liberty, you can unmake the work of your own hands. 
You are clothed with the power of the ballot-box. You have 
the strong arm to resist unto blood. They are voiceless, power- 
less, defenceless. Are not we their representatives here ? There 
are more citizens under than over twenty-one years. They have 
more interest than we in the Constitution we are to frame. 

They are to survive us and the electors who sent us here 

We represent not the mere party which nominated, not the mere 
voters who elected us, but the whole people of New York, of 
every sex, and of every age and condition — aye, and the suc- 
ceeding millions, whose constitutional rights we are now assert- 
ing When, therefore, we convene as the representatives 

of a free people, to discuss elementary principles of constitu- 
tional law, let us discard the spirit of the demagogue It 

devolves upon us to perpetuate the privileges of our citizens, and 
to guard our institutions from danger in the distance, whether 
menaced by legislative corruption, by popular excitement, by 
partisan frenzy, or by the encroachments of power." ^ 

1 It is clearly so, both in form and eiFect. 

2 Deb. N. Y. Com., 1846, pp. 249, 250. 



CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 335 

The result of the debate was, that a clause containing the 
restriction indicated was embodied in the Constitution. 

§ 355. In the Louisiana Convention of 1844, the same ques- 
tion was considered in its relations to the Constitution of the 
United States. The standing committee upon the executive 
department reported to that Convention a provision, the mate- 
rial part of which was as follows : " No person shall be eligible 
to the office of Governor or Lieutenant-Governor, except a na- 
tive citizen of the United States^ or an inhabitant at the time of 
the cession to the United States of that portion of territory in- 
cluded in the present limits of the present State of Louisiana, 
.... and who shall not have arrived at the age of thirty-five 
years." A motion was made to strike out all after the word 
" except," down to the words " State of Louisiana," upon the 
ground, that the proposed restriction was repugnant to the Con- 
stitution of the United States. A debate thereupon sprung up, 
which was participated in by the ablest men in the Convention, 
Mr. Brent, Mr. Soul^, Mr. Benjamin, and others, and which 
resulted in modifying the clause so as to require a person, to be 
eligible to the office of Governor or Lieutenant-Governor, to 
have attained the age of thirty-five years, and to have been fif- 
teen years a citizen and resident of the State — the friends of 
the restriction thus sustaining a defeat. 

The course of argument upon the question was as follows : — 

§ 356. By those who were opposed to the restriction indicated, 
it was urged, that the clause objected to was repugnant to the 
Constitution of the United States ; that if the Convention could 
confine eligibility to native citizens of the United States, it 
might also confine it to native citizens of Louisiana ; that by 
the fourth paragraph of the eighth section of the first article of 
the Federal Constitution, it was declared, " that Congress shall 
have power to establish an uniform rule of naturalization 
throughout the United States ; " that by the first paragraph of 
the second section of the fourth article, it was provided, on the 
other hand, that " the citizens of each State shall be entitled 
to all the privileges and immunities of citizens in the several 
States ; " that, by the paragraph first cited, the several States 
ceded to the general government all control over the subject of 
naturalization, and that the legislation of Congress on the sub- 
ject, therefore, if any had been had, must be regarded as para- 



836 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 

mount and supreme ; that two questions thereupon arose — 
Had this power been exercised by the general government ? and 
if so, Could its action be nullified by the authority of one of 
the States? That to the first question the answer was, that 
Congress had exercised the power, by declaring that immigrants 
to this country who should reside here five years, and pursue 
certain formalities, should be entitled to all the rights and priv- 
ileges of American citizens ; that to the other question, the only 
response was, that the legislation of Congress on the subject 
could not be counteracted or set at nought by any exercise of 
power on the part of the States ; that it could not be doubted 
that the Convention had power to prescribe any qualification it 
pleased for him who aspired to the office of Governor, provided, 
however, that it did not contravene the provision cited from the 
fourth article, by making any distinction between American citi- 
zens ; that the effect of the proposed restriction would be to 
discriminate against the naturalized citizen ; that a foreigner, 
naturalized, let it be supposed, in the State of Illinois, under 
the Act of Congress, and so admitted to all the rights of citi- 
zenship, and eligible, under the laws and Constitution of that 
State, to all offices created by them, would instantly, on remov- 
ing to the State of Louisiana, be struck with disability, and be 
disqualified to hold the office of Governor, whereas no such 
prohibition would extend to the native citizen of that or any 
other State; which would clearly violate that clause of the 
Federal Constitution which declares that " the citizens of each 
State shall be entitled to all the privileges and immunities of. 
citizens in the several States." ^ 

§ 357. On the other hand, the advocates of the proposed 
restriction contended, that the provision of the Federal Consti- 
tution, that " the citizens of each State shall be entitled to all 
the privileges and immunities of citizens in the several States," 
did not mean that they should be invested with all the rights 
which could be enjoyed by any citizen, but such only as flowed 
from the mere fact of citizenship, irrespective of other qualifica- 
tions ; that, accordingly, under this clause of the Constitution, 
no citizen of one State, migrating to another, could there claim 
to be a 'i oter or to be eligible to office, unless mere citizenship, 
without 3ther conditions, under the Constitution or laws of such 

1 See speeches of Messrs. Beatty, Brent, and Soule, in Deb. La. Conv., 1844, 
pp. 206, 207, 211. 



CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 337 

other State, entitled its citizens to those privileges ; that the 
conduct of the founders of the Federal government indicated 
that it was not their intention, by the provision in question, to 
throw open all political rights to all citizens without qualifica- 
tions, for they restricted eligibility to the offices of President and 
Senator in Congress to persons having prescribed qualifications 
as to age and citizenship ; that, although it was true, that the 
Constitutions of most of the States contained no clause similar 
to the one proposed, such a clause was contained in six of those 
Constitutions, amongst them that of Virginia, framed in 1829- 
30, by a Convention which reckoned among its members some 
of the ablest men ever known in the Union, one of them a dele- 
gate to the Federal Convention of 1787, such as Monroe, Madi- 
son, Marshall, Patrick Henry, John Randolph, and Giles ; that 
in that Constitution it was provided, that no man should be 
Governor of Virginia unless he was, — 1st, thirty years of age; 
2d, a native-born citizen of the United States ; 3d, five years a 
resident of the State ; that, moreover, the action of Congress 
in admitting into the Union States whose Constitutions con- 
tained the restriction complained of was evidence tending to the 
same result ; that the three States of Arkansas, Missouri, and 
Alabama, were the States referred to, and it being absolutely 
necessary, before they could be admitted, that their Constitu- 
tions should have been submitted to the Congress of the United 
States, to determine that no provision had been inserted therein 
which would clash with the Federal Constitution, when Con- 
gress had passed upon those instruments and admitted those 
States under them, no other or stronger evidence could be de- 
sired, that they did not conflict with the Federal Constitution ; 
that to hold the contrary would be to maintain, that on three 
several occasions the Representatives and Senators in Con- 
gress and the Presidents of the United States had asserted an 
unconstitutional restriction to be a constitutional one.^ 

§ 358. Notwithstanding the adverse decision, if it must be so 
regarded, of this question in Louisiana, I am satisfied they 
were right who maintained the existence of power in the Con- 
vention to make the restriction. 

1. It is important to note, that in the provision of the Federal 
Constitution, that " the citizens of each State shall be entitled 

1 Deh. La. Conv., 1844, p. 220. 
22 



338 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTOES? 

to all the privileges and immunities of citizens in the several 
States," the words, " in the several States," qualify the word 
" entitled," and not the nearer word, " citizens ; " so that, arrang- 
ing the words according to their grammatical relations, the pas- 
sage would read thus : " the citizens of each State shall be 
entitled in the several States to the privileges and immunities 
of citizens." Were those words to be taken as qualifying the 
word " citizens," the Federal Constitution would be made to 
give to every citizen, wherever he might be in the Union, all the 
privileges and immunities enjoyed by citizens in any State ; that 
is, supposing the office of Governor were, in the State of Ala- 
bama, thrown open to all the citizens of Alabama, the Federal 
Constitution would then step in and secure the same privilege 
to the citizens of each State, in their several States. The phrase- 
ology used, however, properly understood, has no such wide op- 
eration. By it, a citizen, migrating from any State to another 
State, would be entitled, in the latter, to such privileges as were 
there accorded to the possession of mere citizenship, under its 
laws. Thus, a citizen of New York, migrating to New Jersey, 
would not be an alien, but a citizen of New Jersey, and, as 
such, entitled to enjoy such privileges and exercise such rights, 
as the State of New Jersey allowed indifferently to all its citizens. 

§ 359. It is, therefore, a matter of importance to ascertain 
what are "the rights of citizens in the several States;" that is, 
the rights attaching in the several States to naked citizenship ; 
for such rights only are guaranteed by the constitutional pro- 
vision cited. 

It is believed, that the rights attaching in the several States to 
the possession of mere citizenship exist not by positive law, but 
by the principles of the common law, or by those of public law. 
It is then in the decisions of courts of law, and in the writings 
of publicists and jurists, that we must look to determine what 
those rights are. 

A clear exposition of those rights was made at an early day 
by Mr. Justice Washington, in a case which has been a leading 
authority upon the subject ever since.^ The State of New Jersey 
having passed an Act confining the right of fishing for oysters 
in its waters to its own citizens, the question was raised in that 
case, whether the Act was not in violation of Art. IV. § 2, of 
1 Corfield v. Coryell, 4 Wash. C. C, K. 371. 



CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 339 

the Federal Constitution. After stating the question, Justice 
Washington said : — 

" The inquiry is, what are the privileges and immunities of 
citizens in the several States ? We feel no hesitation in confin- 
ing these expressions to those privileges and immunities which 
are in their nature fundamental ; which belong, of right, to the 
citizens of all free governments; and which have at all times 
been enjoyed by the citizens of the several States which com- 
pose this Union, from the time of their becoming free, inde- 
pendent, and sovereign. What these fundamental principles 
are, it would perhaps be more tedious than difficult to enumer- 
ate. They may, however, be all comprehended under the fol- 
lowing general heads: protection by the government, the enjoy- 
ment of life and liberty, with the right to acquire and possess 
property of every kind, and to pursue and obtain happiness and 
safety ; subject, nevertheless, to such restraints as the govern- 
ment may justly prescribe for the general good of the whole. 
The right of a citizen of one State to pass through or to reside 
in any other State, for the purposes of trade, agriculture, profes- 
sional pursuits, or otherwise ; to claim the benefit of the writ of 
Habeas Corpus ; to institute and maintain actions of any kind 
in the courts of the State ; to take, hold, and dispose of prop- 
erty, either real or personal ; and an exemption from higher taxes 
or impositions than are paid by the other citizens of the State, 
may be mentioned as some of the particular privileges and im- 
munities of citizens, which are clearly embraced by the general 
description of privileges deemed to be fundamental ; to which 
may be added the elective franchise, as regulated and established 
by the laws and Constitution of the State in which it is to be 
exercised^ 

§ 360. That the right to vote or to be elected to office, irre- 
spectively of the qualifications prescribed by the laws of the 
State to which a citizen may remove, is not one of the privi- 
leges and immunities intended by the Federal Constitution, is 
clearly inferable from the last clause of this extract. The same 
opinion has been expressed by our best constitutional lawyer, 
Daniel Webster. Thus, in an argument before the Supreme 
Court of the United States in the case of The Bank of the Uni- 
ted States V. Primrose,^ Mr. Webster, referring to the article of 
the Constitution in question, said : — 

1 Webster's Works, Vol. VI. p. 112. 



o40 CAN ELECTORS INSTRUCT THEIR DELEGATES TO CONVENTIONS? 

" That this Article in the Constitution does not confer on the 
citizens of each State political rights in every other State, is ad- 
mitted. A citizen of Pennsylvania cannot go into Virginia and 
vote at an election in that State ; though when he has acquired 
a residence in Virginia, and is otherwise qualified, as required 
by her Constitution, he becomes, without formal adoption as a 
citizen of Virginia, a citizen of that State politically. But for 
the purposes of trade, commerce, buying and selling, it is evi- 
dently not in the power of any State to impose any hindrance 
or embaiTassment, or levy any excise, toll, duty, or exclusion, 
upon citizens of other States, or to place them, coming there, 
upon a different footing from her own citizens." ^ 

§ 361. From the reasonings above given, it is plain, that mere 
citizenship of a State does not carry with it a right to enjoy all 
the privileges and immunities conferred upon any citizen, but 
only certain civil rights, resting on natural law, but needing for 
their practical enjoyment the guaranty of government. It would, 
perhaps, express the whole truth to say, that the rights to which 
one is entitled from the naked fact of citizenship, are those usu- 
ally guaranteed by our Bills of Rights. It is equally apparent 
that there are privileges and immunities enjoyed by some cit- 
izens, by reason of special qualifications, that are not conferred 
upon all citizens, though none but citizens can enjoy them — 
privileges and immunities that spring from positive law, such as 
to vote and to hold office. The former are denominated civil, 
the latter, political rights. 

In assuming, then, as did the Louisiana Convention of 1844, 
to restrict eligibility to the office of governor, to native-born cit- 
izens of the United States, that body did not, in my view, tran- 
scend its power or contravene the Federal Constitution. The 
question as to the expediency of such a restriction, is a different 
one, which it is unnecessary here to discuss. 

§ 362. 8. The last question, involving the relations of Con- 
ventions to the electors, which I propose to consider, is — Have 

1 To the same effect, see Amy v. Smith, 1 Littell R. 333; Campbell v. Mor- 
ris, 3 Har. & McHen. R. 554 ; Murray v. McCarty, 2 Munf. R. 398 ; Austin v. 
The State, 10 Mo. R. 592; and the opinion of Justice Curtis in the case of Dred 
Scott V. Sandford, 19 How. (U. S.) R. 580-584. See also the remarks of Chief 
Justice Spencer, Col. Young, Mr. Radcliff and others, to the same effect, and of 
Mr. Jay, Mr. Van Vechten, Mr. Livingston, Mr. Kent (Chancellor Kent) and 
others, to the contrary, in the ISTew York Convention of 1821, in Deh. N. Y. 
Conv. 1821, pp. 183-202. 



CAN ELECTORS INSTRUCT THEIR DELEGATES TO CONVENTIONS ? 341 

the electors power to instruct their delegates, and if so, to what 
extent, or under what conditions ? 

This question arose as a practical one in the Ohio Convention 
of 1850, but was not discussed, the member, for whom the in- 
structions were intended, refusing to obey them, but resigning 
his office, with the acquiescence of the Convention. As I deem 
the right of instruction, as asserted in this case, more than doubt- 
ful, a brief statement of the facts, and of the principles which, 
in my view, ought to govern it, will not be out of place. 

The Ohio Convention of 1850 having been called, in anticipa- 
tion of the election of delegates thereto, a public meeting was 
held " of the democracy of Butler County," at which resolutions 
were passed instructing the delegates who should be chosen from 
that county, to support, in the Convention, the doctrine of the 
repealability of charters of incorporation, as well those then ex- 
isting as those that might be granted in the future. Mr. Vance, 
a candidate for the Convention, from Butler County, in a com- 
munication to his constituents, published before the election, 
refused to subscribe to the platform thus laid down for him, but 
was nevertheless elected by a large majority. The Convention 
having assembled, a clause was proposed to be inserted in the 
Constitution, giving to the legislature unlimited power of repeal- 
ing such charters. The course of Mr. Vance upon this subject, 
not being satisfactory to the " democracy of Butler County," a 
meeting of the latter was again called, at which the instructions 
to their delegates were repeated and emphasized, and those del- 
egates were requested to adhere to them strictly or to resign. 
Mr. Vance chose to do the latter, not distinctly admitting the 
instructions to be binding on him, but being unwilling to be 
placed in a position which would carry with it even the appear- 
ance of disobedience to the will of his constituents. 

§ 363. As bearing on the general question of the right of in- 
struction, the following observations seem to me to be pertinent 
to this case. 

1. The function of a Convention being, when considered in 
the light of theory, advisory merely, and that of the particular 
Convention in question having been made so by the Act of As- 
sembly, under which it convened, since the latter expressly 
required the submission of the Constitution to be framed by 
it to the people, it would seem to be an act of absurd inconsist- 



342 CAN ELECTORS INSTRUCT THEIR DELEGATES TO CONVENTIONS? 

ency for the people, or any part of the people, forming an elect- 
oral district, to instruct its delegates. It would be simply to ask 
advice, but first to dictate to the advising body what its advice 
should be ! 

2. But the Ohio case was more absurd than that. It was not 
the people of Ohio, or, even, what might by analogy be called 
the people of Butler County, that assumed to issue instructions 
in that case. It was " the democracy of Butler County," the 
members of one of its political parties, — comprising, perhaps, a 
majority of its legal voters, and perhaps not, — who presumed to 
discharge that delicate duty. It is doubtful if the dogma of 
squatter-sovereignty ever produced an act of greater insolence 
or absurdity than this. Whatever the delegates to the Con- 
vention represented, they certainly did not represent the " democ- 
racy of Butler County," who, therefore, had no more right to 
instruct them than had the milkmaids or the barbers of Butler 
County. If those delegates represented anybody within the 
county, it was the electors there residing, without distinction of 
party, of whom the election expressed the collective will. If the 
right of instruction were conceded to any designated section of 
the electors, acting, not as electors, but in a party or other pri- 
vate capacity, it could not be denied to every individual voter. 
For, in such a case, the right would be accorded to them, not as 
being the majority of the electors, since the term majority is 
relative to the entire electoral body only, but as constituting the 
party or section, whether less or more than the majority — a 
right which could rest only on the sovereignty of the individual 
elector. 

§ 364. 3. Finally, I observe, that the right of instruction, if 
it exists at all, must inhere either in the sovereign, or in some 
body representing the sovereign, and that in either case, the elect- 
oral body of any particular district would be incapable of exer- 
cising the right. The electors are not the sovereign, though as a 
body they unquestionably are the representatives of the sovereign, 
and whatever they do, as such, within constitutional limits, must 
be considered as done by the sovereign itself. If that body were 
to publish instructions to a Convention in reference to the meas- 
ures it should consider or report, whatever might be thought of 
the expediency of its interfering thus, neither their right to do 
so, nor the consequent duty of obedience on the part of the del- 



RELATIONS OP CONVENTIONS TO EXECUTIVE AND JUDICIARY. 343 

egates could well be denied.^ But with the electors of any 
particular electoral circle, the case is widely different. They do 
not, in a strict sense of the term, represent the sovereign. They, 
together with their co-electors throughout the State, are its rep- 
resentatives. Their voice, therefore, though an element in that 
which is to be taken as the voice of the sovereign, is not itself 
that voice. The voice of the sovereign is a chorus, made up 
of the separate voices of all the electors ; it is the resultant of 
those separate voices. It follows, therefore, first, that instruc- 
tions, if given by the electors at all, must emanate from the 
entire electoral body, as no otherwise could they be authentic ; 
and, secondly, that they must be addressed to the assembly of 
the delegates and not to the single delegate, or to a less num- 
ber than the entire body. 

With the question. Whether instructions can be given to a 
Convention by any body of persons in the State beside the 
electors, as by the legislature, I do not now concern myself, 
since it will be the subject of special inquiry in the following 
chapter of this work. 

§ 365. Thus far, I have considered the relations of Conven- 
tions to the sovereign body, and to the electors, its immediate 
representatives. I proceed now to discuss the relations of those 
bodies to the other governmental agencies, commonly styled the 
Legislative, Executive, and Judicial Departments, and to in- 
quire into the powers and disabilities resulting to them severally 
on account of those relations. 

§ 366. (d). 1. With the Executive and Judiciary of a State, 
a Convention has, in the ordinary and normal operation of its 
government, no direct relations. Neither of these departments 
has any thing to do with calling it together, except in perhaps 
rare cases, in which some specific and extraordinary duty has 
been prescribed to it by the legislature ; and neither of them, 
while a Convention is in session, has any occasion to come in 
contact with it. The only cases in which either of those depart- 
ments could be brought into direct relations with that body, 
would be where the latter should attempt to direct it in the dis- 
charge of its constitutional duties, — a case which has already 
been considered, — or in which one of the former should at- 
tempt to revolve outside its proper orbit, and thus bring about 
1 See post, §§ 376-383, where this question is more fully considered. 



344 RELATIONS OF THE CONVENTION TO THE LEGISLATURE. 

collisions with the latter. Inasmuch, however, as neither of the 
three could with any show of right do any act which should re- 
sult in such a collision, except when acting in assumed con- 
formity to some law, giving to usurpation an apparent legality, 
no questions could arise between them as to their respective 
powers, which would jiot resolve themselves into questions as to 
the relative powers of Conventions and legislatures, the only 
law-making bodies, save the electors, which have been already 
considered, known to our Constitutions. I shall therefore spend 
no time in considering the relations of those two departments to 
Conventions, but pass to those which the latter bear to legis- 
latures, and the powers resulting therefrom, which belong to 
each of those bodies. 

§ 367. 2. From a variety of causes, the relations of a Con- 
vention in any State to its legislature give rise to questions of 
the greatest moment and of the greatest difficulty. It is possible 
to comprehend and to estimate, relatively to each other, these two 
bodies, only by ascertaining, first, their respective relations to 
the sovereign ; and, secondly, their mutual resemblances and 
differences of structure and function. Of these, the first has 
so frequently been the subject of consideration in previous chap- 
ters, that it is now only necessary to recapitulate some of the 
leading features of those bodies as they stand related to the 
political society in which they are convened. We have seen that 
both Conventions and legislatures are agencies appointed by 
the sovereign for purposes of its own, connec^ted with the forma- 
tion, the renewal, or the operation of government, the func- 
tion of each being a legislative one ; that to the former are in- 
trusted certain duties relating to the framing of the fundamental 
laws, extending in some cases, according to their commissions, 
to the definitive enactment of them ; and to the latter the en- 
actment of the ordinary or statute law ; that, laying out of 
view those rare cases in which powers of definitive action are 
given, Conventions are not strictly representative bodies, but 
rather collections of delegates, so confined and restricted by the 
nature of their duties and by the customary law pertaining to 
them, that they are essentially nothing but mere committees ; 
that, on the other hand, legislatures are invested with so wide 
a discretion, and such power of definitive action, that they are 
entitled to be ranked as par excellence representative bodies ; 



RELATIONS OF THE CONVENTION TO THE LEGISLATURE. 345 

that both are, nevertheless, responsible for the exercise of power 
to its source, the sovereign, but to a different extent and in a 
different manner; the responsibility of the former being ordi- 
narily more direct, inasmuch as its office is " to recommend, but 
to conclude nothing," submitting the fruit of its deliberations to 
the electors ; that of the legislature, on the other hand, being 
remote and indirect, since its function is to determine absolutely 
the right and the expedient in the current life of the State, subject 
only to reversal, or, in extreme cases, to punishment for error or 
malfeasance in that office. Both Conventions and legislatures, 
then, equally sustain the relation of instruments through which 
the sovereign executes its will ; they are both creatures of the 
Constitution, the principles and provisions of which are, during 
their existence, in full operation, and constitute their charter ; 
and hence they are to be viewed as parts of a system of coor- 
dinate but mutually inter-dependent agencies, the powers and 
jurisdiction of which are to be ascertained from a study of that 
system and not of each agency dissociated from the others. 

§ 368. In point of structure, the two species of bodies .differ 
widely from each other. The Convention is composed of a 
single chamber, and the legislature, in all the American govern- 
ments, and in most liberal ones abroad, of two chambers, coor- 
dinate in authority, but representing different constituencies, and 
often different interests. By this diversity a Convention is 
readily seen to be theoretically less adapted for final action than 
a legislature. It is liable to the objection so fatal to single 
legislative assemblies, that it is prone to hasty and passionate 
determinations, and is, therefore, a ready instrument of faction 
and revolution. In matters which should appeal directly to the 
prejudices of its members, it could not be relied upon as just or 
wise. Such, so far as its structure is concerned, is likely to be 
the character of a Convention. A compensating influence, 
however, is afforded by the subject-matter of its deliberations. 
The fundamental law, while it is infinitely more important than 
the ordinary municipal law, to frame which is the province of a 
legislature, bears less nearly upon the dominant interests or 
passions of men, and hence it might so far be left safely to be 
moulded by a single chamber, even were its action to be final. 
When it is considered, however, that the action of Conventions 
is ordinarily not final, but recommendatory merely, the objec- 



346 EELATIONS OF THE CONVENTION TO THE LEGISLATURE. 

tions to their structure which have been noted are seen to be of 
much less weight. 

§ 369. An important analogy between Conventions and legis- 
latures relates to the qualifications for membership of those 
bodies. As we have already seen, the members of our legisla- 
tures are uniformly required to be elected from citizens of pre- 
scribed age, sex, and social conditions, that is, from the body of 
the electors. This is a matter which is carefully ascertained in 
our Constitutions. In relation, on the other hand, to the per- 
sons who shall be eligible as delegates to our Conventions, 
those instruments are commonly silent.^ From this fact the in- 
ference has been drawn, that, in the absence of specific qualifi- 
cations, it was intended that the electors should exercise perfect 
freedom of choice, and that it would be competent for them to 
depute as their delegates minors, or females, or citizens of other 
States. But this is a matter of doubt ; for, as shown in a pre- 
vious chapter, analogy, as well as the principles of popular gov- 
ernment, seem to restrict the holding of public functions to the 
class in whom rests, as the nearest representatives of the sover- 
eign, the practical exercise of sovereign rights, namely, that of 
the electors. Accordingly, as there stated, equally when the 
qualifications of delegates have, and when they have not, been 
prescribed, the choice of them has been almost uniformly con- 
fined within the limits determining the minimum qualifications 
of the electoral body. 

§ 370. In respect of their functions, there is also an analogy, 
which is at the same time a contrast, between Conventions 
and legislatures. Both, as we have seen, belong to the genus 
legislature. That is, they are both charged with the elaboration 
or the enactment of laws. Where they differ is in the kind of 
law with which they are concerned, and in the extent of their 
agency in its formation. 

1. A Convention participates directly in the enactment of the 
fundamental law only. Indirectly, it may determine the limits 
or the general character of the municipal law, but it never 
rightfully assumes to enact, or even to recommend it, except 
when that law has passed over from the experimental to that 
which is truly fundamental. Whatever it does, however, in the 

1 See anie^ §§ 267-269, in wlilch the exceptions are stated, where the quali- 
ficatians of delegates are prescribed. 



RELATIONS OP THE CONVENTION TO THE LEGISLATURE. 347 

sphere accorded to it, it does merely by way of recommenda- 
tion to the body behind it, by whom its recommendations are to 
be adopted or rejected. A Convention, therefore, is a legisla- 
tive body only sub modo, having some, but not all, legislative 
functions. 

2. A legislature, on the other hand, is a body possessed of 
much broader powers. Though responsible to the sovereign 
that created it, it is its function to express authentically the will 
of the sovereign in relation to all emergencies of the social state, 
so far at least as it has not been manifested by the Constitution. 
It is the body which pronounces the statute law of the State. 
All measures relating to the conduct or to the rights of indi- 
viduals, to the administration, or defence of the government, 
which are not prohibited by the fundamental law or by the moral 
code,i and which yet are deemed, on a large view of the public 
interests, to be expedient, are within the competence of a legis- 
lature with the general powers of legislation conferred by our 
Constitutions. 

§ 371. To this general statement of the extent of the power 
of our legislatures, the proviso must be appended, that the 
measures passed by those bodies must not be of the character 
denominated fundamental. The necessity of this proviso is ap- 
parent from the character of the American governments, before 
referred to, as distinguished from that of Great Britain, after 
which they were modelled. The Parliament of Great Britain is 
possessed of all legislative powers whatsoever. It can enact 
ordinary statutes, and it can pass laws strictly fundamental. 
Not so with our legislatures. Saving the single case, to be 
noted in a subsequent chapter, in which, by express constitu- 
tional provision, they act in a conventional capacity, in the way 
of recommending specific amendments to their Constitutions, 
they have no power whatever to amend, alter, or abolish those 
instruments. Subject, however, to this limitation, a legisla- 
ture, under our system, may expatiate through the whole do- 
main of the expedient, as fully as the sovereign itself could do, 
were it to act in person.^ The propriety of such an adjustment 

1 But, that a Convention has power to trample on the moral code, or, as 
it is termed, " to annul perfect rights," see M'Mullen v. Hodge, 5 Texas R. 34. 
See also Warren v. Sherman, id. 441. 

2 This description of the limits of legislative power is applicable only to the 



348 RELATIONS OP THE CONVENTION TO THE LEGISLATURE. 

of powers is apparent from the consideration, that whatever is 
expedient to be done, within the limits imposed by the funda- 
mental law, and whatever, therefore, it may presume the sov- 
ereign, in the case supposed, would order to be done, some 
agency, in all governments pretending to be adequate to per- 
petuate their own existence, must have authority to do. The 
formation and establishment of the fundamental law is, in all 
the American Constitutions, regularly the work of Conventions 
acting in conjunction with the electors. On the other hand, no 
fact is better settled than that, beyond the province thus spe- 
cially set apart for them, neither Conventions nor the bodies of 
electors have any legislative power. They can neither of them 
pass any law comprised within the sphere of ordinary legisla- 
tion.i 

§ 372. In relation to legislatures proper, however, we repeat, 
it is well settled, that under the general grant of legislative 
powers contained in our State Constitutions, they are compe- 
tent to pass all laws whatsoever, not fundamental in character, 
and not prohibited either by the laws of morality or by the Con- 
stitutions to which they are subject, State and Federal. Within 
these limits, the only question our legislators are bound to ask 
is. Is the law proposed an expression of what is truly expedient 
to be done ? Nor is there any subject so sacred but that legis- 
lation may be made to affect it, provided the boundaries above 
prescribed be not passed. And although a legislature is but one 
of many coordinate departments in the government of a State, 
^o each of which a separate and generally well-defined sphere 
of activity is set apart, it is yet possessed of powers the most 
wide-reaching of all — powers most nearly sovereign, and in a 
certain sense supplementary to those of all the others. Some 
of these powers are vested in the legislature in express terms by 
the Constitution, and others devolve upon it by necessary impli- 
cation, as being involved in the general gi'ant of legislative 

State legislatures. That of the Congress of the United States is more limited, 
being confined to legislation upon subjects expressly defined in the Federal Con- 
stitution. 

1 The debates of our Conventions are full of disavowals of a right on the 
part of those bodies to pass ordinary laws. In a few cases, nevertheless, it must 
be admitted, that right has been claimed as a part of a general claim of all sov- 
ereign powers. It has never been practically asserted, however, except in a few 
doubtful cases, which will be considered hereafter. 



RELATIONS OF THE CONVENTION TO THE LEGISLATURE. 349 

power. Thus, to the legislature it is commonly left to deter- 
mine the details of the organization, and often the operation of 
the other departments ; as, for instance, the times of assembling 
of the electors and of the judiciary ; the modes of their proce- 
dure, and in the case of the latter, the establishment of its cir- 
cuits and of its inferior tribunals; the election, in certain cases, 
of executive or judicial officers ; in other cases there is cast upon 
it or upon its presiding officers the exercise of the functions of 
those two departments. Instances of these powers occur on 
every page of our Constitutions. 

§ 373. Of powers implicitly granted, instances are equally 
numerous. The most striking are those which occur daily upon 
the happening of unexpected events requiring instant legislative 
interposition to prevent evil consequences or to make them 
subservient to the public good. In all such cases it is the legis- 
lature that is called upon, as alone possessing the power to do 
or to authorize what is deemed necessary to be done. Such 
conjunctures commonly find the executive of the State or the 
judges inert, because powerless, unless indeed they should seize 
the power to do without law what law alone could render legiti- 
mate. The theory of our governments leaves no necessity for 
such usurpation, except in the single case of inadequate consti- 
tutional power ; as, where the acts clearly necessary for the pub- 
lic safety have been directly prohibited by the Constitution. 
Bating this extreme and perhaps improbable case, there remain 
those, infinite in number, in which our legislatures, under a grant 
of general legislative powers, are enabled to supplement the 
other departments of the government, and to make lawful pro- 
vision for the unforeseen exigencies of the State. 

§ 374. Now let it be noted, that for the purposes and in the 
crises indicated, the legislature is the only agency competent to 
act. The electors certainly could not do it, for it is their sole 
and exclusive function — and they are adequate to no other — to 
elect to office and to pass in a general way upon propositions 
for constitutional change ; the executive could not do it, for its 
business is simply to carry into effect laws passed by the proper 
law-making authority ; it cannot deliberate; nor could the judi- 
ciary do it ; for their province is limited to the interpretation of 
laws, and to their application to the complicated maze of facts 
arising in life and business. If neither of these is competent to 



850 CAN THE LEGISLATURE BIND THE CONVENTION ? 

authorize what is expedient to be done in political or social emer- 
gencies, unless the legislature could do so, the State would be 
left utterly powerless, except where there could be shown an ex- 
press constitutional provision covering the case — a condition 
likely to be but rarely fulfilled. 

§ 375. Finally, in any crisis calling for legal authority to act, 
and where no constitutional provision, either permissive or re- 
strictive, exists, if the legislature take upon itself, within the 
limits of a wise expediency, the power to act, to give the requi- 
site authority and direction, there is no department of the gov- 
ernment that can question its right to do so ; and not only that, 
but a failure to act would stamp it as false to its duty. Having 
all legislative power within the limits indicated, the making of 
such provisions of law as are needed to save the State from 
inconvenience, loss, or danger, defines precisely the legitimate 
exercise of that power. To do it is its imperative duty. For 
that it is constitutionally competent, and all departments of the 
government, all agents and representatives of the sovereign, 
charged with collateral functions, are bound, within the scope 
of that power, to obey its behests, as the authentic expression 
of the will of that sovereign.^ 

§ 376. Having thus two legislative bodies, whose spheres of 
operation are distinct, though conterminous, it is obvious that 
numerous questions may arise between them as to their relative 
jurisdictions and powers. Of these, such as it is desirable for 
us now to consider are reducible to the following heads, which 
will be considered in their order, namely : — 

(a). Questions relating to the power of legislatures to bind 
Conventions, or, what is the same thing, of Conventions to nul- 
lify Acts of their respective legislatures ; and 

(b). Questions as to the power of Conventions to legislate or 
to exercise functions imposed by the Federal Constitution espe- 
cially upon legislatures. 

(a). 1. Among the questions of the first class the most gen- 
eral and important is this : admitting the right of a legislature 
to call a Convention into being by some legislative Act, has it 
the further right to impose conditions, restrictions, or limitations 
upon its action, to dictate to it its organization or modes of 
proceeding; in short, to subject it in any way or to any ex- 
1 Vattel, Law of Nations, Book I. ch. iii. §§ 34, 35. 



CAN THE LEGISLATURE BIND THE CONVENTION? 351 

tent to the restraints of law ? If so, wherein, and to what ex- 
tent? 

§ 377. The theory of those who deny to a legislature power 
thus to bind a Convention, is simply the theory of conventional 
sovereignty, to which allusion has been so frequently made in 
preceding pages. According to this theory, a Convention is a 
virtual assemblage of the people, a representative body charged 
by the sovereign with the duty of framing the fundamental law, 
for which purpose there is devolved upon it all the power the 
sovereign itself possesses ; in short, that, for the particular busi- 
ness with which it is charged, a Convention is possessed of sov- 
ereign powers, by virtue of which it overtops all the other gov- 
ernmental agencies. Hence, while it is admitted, that by reason 
of the occasional and extraordinary character of the Convention, 
the word by which its assembling is to be made a legal act must 
be spoken by the legislature, yet it is contended, that, beyond 
that, it has no power whatever ; or if, as the ultimate concession, 
it be admitted that the supervisory power of the legislature con- 
tinues until the organization of the Convention is completed, 
that that body, when organized, being in a condition to act 
independently, all right of external control over it eo instanti 
ceases, and the career of its omnipotence begins. 

§ 378. By those, on the other hand, who assert the right of a 
legislature to bind a Convention, it is contended, that the latter 
is in no proper sense of the term and to no extent sovereign ; 
that it is but an agency employed by the sovereign to institute 
government ; that as such, even if it were invested with power 
to act definitively to an equal extent with some other depart- 
ments of the government, there would be no special sacredness 
attaching to it by reason of its framing the fundamental law — 
no such dignity as ought to invest it with a primacy before all 
other State agencies; but that, when it is considered, on the 
contrary, that a Convention has no such power to act defini- 
tively, but that it is a body having the general characteristics of 
a legislature, but with the functions and organization only of 
a committee, it would be not only preposterous to give to it the 
rank of a sovereign power, but absurd to consider it entitled to 
any preponderating influence whatsoever ; that, inasmuch, there- 
fore, as a Convention is a body whose assembling is occasional 
and dependent on considerations of expediency, it follows that 



352 CAN THE LEGISLATURE BIND THE CONVENTION ? 

the legislature, whose function it is especially to declare and 
enforce the expedient, is the proper body to determine the time 
and conditions of such assembling ; that in doing so it would 
not set itself above the Convention ; it would simply announce 
the will of their common sovereign in relation to the scope of 
the business committed to a coordinate agency ; and that in the 
absence of constitutional provisions, the extent to which a legis- 
lature may prescribe the conduct of a Convention must rest 
in its own discretion, subject to the limitation, that its require- 
ments must be in harmony with the principles of the Con- 
vention system, or, rather, not inconsistent with the exercise 
by the Convention of its essential and characteristic func- 
tion. 

§ 379. Conceding, then, that a legislature may by its enact- 
ments bind a Convention, it remains to determine to what 
extent it may do so, and in what particulars. In relation to the 
extent of its power, it may be said, in general, as intimated 
above, that a legislature is to be governed by the obvious pro- 
prieties of the case, which require, on the one side, that it should 
prescribe whatever a prudent foresight should indicate as proper 
and expedient, and, on the other, that there should be left to the 
Convention liberty to discharge its essential function of deliber- 
ation. Both bodies have rights : the legislature, the right to 
consult for, and, by prudent regulations, to secure the public 
welfare ; the Convention, the right to execute that commission 
with which it must be charged in order to be a Convention at 
all. And there is really no antagonism between the two. Both 
act for the same principal, and they are hence bound each so to 
frame or to construe the mandate from which the powers of the 
other must be derived, as to give to it scope and freedom in the 
exercise of its characteristic functions. Accordingly, it would 
seem to be the duty of a legislature, in calling a Convention, 
to avoid hampering it in its proper business, which is, to over- 
haul the existing Constitution, ascertain its defective or obsolete 
provisions, and to recommend amendments thereto. Composed 
of men carefully selected, and presumably well instructed in 
regard to the public will, it would be unfair to suppose a Con- 
vention wholly unqualified to determine what it ought and what 
it ought not to recommend. Without now denying, therefore, 
the right of a legislature to indicate the subjects on which a 



CAN THE LEGISLATURE BIND THE CONTENTION? 353 

Convention shall deliberate, and to forbid it to overpass certain 
limits, the expediency of exercising such a right would, in gen- 
eral, be doubtful. 

§ 380. On the other hand, the legislature is the sentinel on 
duty. It cannot rightfully abdicate that position. In conven- 
ing an extraordinary assembly, constituting unquestionably the 
weak side of our institutions, and therefore the one upon which 
usurpation may be expected to make its assaults, it must see 
to it that the Republic not only do not receive, but be placed in 
no danger of receiving, any detriment. It cannot excuse itself 
from insisting that a Convention shall be composed of members 
elected from amongst the most intelligent citizens of mature 
age, according to regulations fitted to secure a fair representa- 
tion ; that its numbers shall be limited ; that the body shall as- 
semble at a prescribed time and place ; that it shall be organ- 
ized in a particular manner, if to the legislature the mode of its 
organization shall not seem a matter of indifference ; that its 
expenses shall be certified in such a manner, and by and to 
such officers, as shall make it reasonably certain that the public 
funds will not be squandered or diverted to partisan or treason- 
able uses ; and finally, what is incomparably more important 
than all else, that it shall propose, instead of enacting, constitu- 
tional changes, — in other words, that the fruit of its labors 
shall be so submitted to the people as to ascertain authentically 
their will in relation to it. In short, it is in general the right 
and the duty of a legislature to prescribe when, and where, and 
hoiv a Convention shall meet and proceed with its business, and 
put its work in operation, but not ivhat it shall do. Without re- 
strictions as to the former particulars, the Convention would be 
wholly independent of the existing government, and, without 
restrictions as to the latter, a mere echo of the legislature which 
called it together. 

§ 381. The question now arises, Suppose the legislature 
should assume to dictate to the Convention what it should, or 
what it should not, recommend, would the latter be bound to 
obey ? To the first branch of the question, if by it be implied 
the dictation of specific measures, and not that of the general 
subjects for its consideration, the answer must be in the nega- 
tive. A legislature is not constitutionally competent to do an 
absurd act ; and it would be guilty of rank absurdity if it were 
28 



354 CAN THE LEGISLATURE BIND THE CONVENTION? 

to prescribe to a deliberative body what the results of its delib- 
erations should be. 

/**"*"""But5 on the other hand, suppose the question to mean, 
whether, if the legislature should issue instructions in re- 

■ gard to the subjects to which the Convention should direct its 
inquiries, the latter would be bound to obey ? the answer must 
be, that it would ; for that would be emphatically a question of 
expediency, to determine which is more appropriately within 
the province of a legislature. Although the Convention might 
dissent from its conclusion, and, in fact, represent the wiser 
opinion, still it could show no warrant for asserting its opinion 
in opposition to that of the legislature. It could show no war- 
rant even for assembling, except the Act of the latter, which upon 
its face would direct the exercise of its delegated powers within 
certain prescribed limits. It clearly could not rightfully separate 
the mandate of the sovereign into two parts, one for obedience 
and the other for disobedience, unless obedience to both were 
incompatible with the exercise of its functions as a Convention 
at all. 

§ 382. Similar considerations will enable us to answer the 
other branch of the question, namely, Whether the Convention 
ought to obey, should the legislature prescribe to it what it 
should not enact or recommend ? It is believed that a prohibit 
tion of this character would be imposed only when the convic- 
tion should be very strong and general, that the subjects em- 
braced within it ought not, on grounds of policy or of principle, 
to be brought into discussion at all. When that should be the 
case, who would say that obedience ought not to be accorded to 
the Act imposing the restriction ? If it were believed that nar- 
row or partisan views lay at the bottom of the inhibition, that 
would furnish a reason for appealing to the people to cause 
themselves to be better represented, or to reconsider their opin- 
ions, but not for disobedience to laws constitutionally passed. 
The case, indeed, for the legislature would, at the worst, stand 
thus : A body, consisting of two chambers, and, therefore, prob- 
ably better representing the diverse interests of the State, differs 
in its views of the expediency of particular constitutional 
changes, from another body, chosen, it is true, at a later day, but 
comprised in a single chamber, in which important interests 
might be smothered by a majority ; — the question now being, 



CAN THE LEGISLATURE BIND THE CONYENTION ? 355 

whose views are to prevail, the consideration, that fundamental 
laws ought to embody only such measures as have ceased to be 
experimental, as express fixed and settled policy — a condition 
that could not be fulfilled so long as the measures proposed 
should be subjects of party conflict, — must be regarded as de- 
ciding it in favor of the legislature ; for, the fact that such a 
body failed to approve of a measure would indicate that it is 
not yet ripe for harvest as a fundamental law; while the fact 
that a single chamber expressly approved it, would not neces- 
sarily indicate the contrary. Neither in the Electoral College, 
nor in a Convention, is there any device by which a minority, 
however large, can cause its views to prevail, or prevent those 
of the majority from prevailing. In legislatures, the division 
into two chambers often operates to produce such an eflfect, 
measures which a majority of all the representatives balloting 
together would promptly pass, being defeated, when there is re- 
quired to pass them a majority in two houses. More emphati- 
cally, then, the fact that proposed constitutional changes are so 
little desired, that they not only fail to receive the sanction, but 
receive the express reprobation, of a legislature of two houses, 
is, in my view, conclusive evidence, that they are as yet unripe 
for adoption as parts of the fundamental code. 

§ 383. The question as to the power of legislatures to bind 
Conventions has been the subject of discussion in many bodies 
of the latter description, and it will be interesting to note the 
views entertained and the decisions arrived at regarding it. 

The earliest discussion of the question arose in the Federal 
Convention of 1787. It is well known, that the credentials of 
the delegates to that body restricted them to the simple duty of 
revising and reporting amendments to the Articles of Confeder- 
ation. With some difference of phraseology, they all, with the 
exception of those of the delegates from New Jersey, which 
State seems to have taken a wider view of the perils and ne- 
cessities of the situation than any other, substantially accorded 
in this limitation.^ The credentials of the delegates from New 
Jersey thus prescribed the purpose of the meeting : — " For the 
purpose of taking into consideration the state of the Union, as to 
trade and other important objects, and of devising such other pro- 
visions as shall appear to be necessary to render the Constitution 
of the Federal government adequate to the exigencies thereof." 
1 Elliott's Deh., Yol. I. p. 163. 



356 CAN THE LEGISLATURE BIND THE CONVENTION? 

The credentials of the delegates from Massachusetts and New 
York authorized them to meet " for the sole and express purpose 
of revising the Articles of Confederation, and reporting to Con- 
gress and the several legislatures such alterations and provis- 
ions therein as shall, when agreed to in Congress, and confirmed 
by the States, render the Federal Constitution adequate to the 
exigencies of government and the preservation of the Union." 
It would be difficult by any fair construction to find in this lan- 
guage power to do more than to patch up the old Confedera- 
tion ; and there is no room for doubt, that the views of the 
people at the time the Acts were passed which resulted in the 
assembling of the Convention, went no further than that. But 
the leading statesmen in that body became early convinced, 
that the only hope for the Union was in superseding the worth- 
less system then in operation by a national government with 
large powers. Accordingly, on the introduction of what is 
known as Mr. Randolph's plan, soon after the organization of 
the Convention, and from that time on to the close of its ses- 
sions, it was never doubtful that the predominant sentiment of 
the body favored that plan, as containing avowedly the features 
of a national government. And it thus favored it against the 
vigorous protest of many members, who, coming from the 
smaller States, opposed such a plan as likely to lessen their pro- 
portionate weight in the Union. By the latter, the argument was 
strongly pressed, and, but for the circumstances of the times, it 
would have prevailed, that the Convention was bound by the 
terms of the Acts under which it assembled to confine itself to the 
limits they prescribed. The majority of the Convention, however, 
resolved, in spite of those restrictions, to recommend a national 
government; but they did it on the ground of necessity, as the 
only hope left for preserving peace and the Union, and many of 
them despaired even then of preserving either the one or the 
other. 

§ 384. Thus, in the debate on Mr. Randolph's plan, as con- 
trasted with that reported by Mr. Paterson, known as the New 
Jersey plan, which proposed simply a modification of the exist- 
ing Confederation, to the objection, that the powers of the Con- 
vention did not extend to the adoption of a national govern- 
ment, Mr. Randolph said : — 

" The resolutions from Virginia must have been adopted on 



CAN THE LEGISLATURE BIND THE CONVENTION? 357 

the supposition that a Federal government was impractica- 
ble. And it is said that power is wanting to institute such 
a government ; but when our all is at stake, I will consent 
to any mode that will preserve us." ^ . . . . " There are rea- 
sons certainly of a peculiar nature when the ordinary cautions 
must be dispensed with ; and this is certainly one of them. 
When the salvation of the Republic was at stake, it would 
be ti-eason to our trust not to propose what we found neces- 
sary." 2 

Mr. Mason " thought with his colleague, Mr. Randolph, that 
there were .... certain crises in which all ordinary cautions 
yielded to public necessity. He gave, as an example, the eventual 
treaty with Great Britain, in forming which the commissioners 
of the United States had wholly disregarded the improvident 
shackles of Congress ; had given to their country an honorable 
and happy peace ; and instead of being censured for the trans- 
gression of their powers, had raised to themselves a monument 
more durable than brass." ^ 

§ 385. On the other hand, Mr. Hamilton deemed the estab- 
lishment of a national system to be within the scope of their 
powers under their credentials. In support of that view he said: 
— " Let us now review the powers with which we are invested. 
We are appointed for the sole and express purpose of revising 
the confederation, and to alter or amend it, so as to render it 
effectual for the piu-poses of a good government. Those who 
suppose it to be federal, lay great stress on the terms sole and 
express, as if those words intended a confinement to a Federal 
government, when the manifest import is no more than that the 
institution of a good government must be the sole and express 

object of your deliberations I have, therefore, no difficulty 

as to the extent of our powers." * 

In this construction- of their credentials, however, Mr. Hamil- 
ton was alone, and, as we have said, it was conceded with almost 
perfect unanimity, both in the Federal Convention and in those 
held in the States to pass upon the Constitution framed by it, 
that in recommending that instrument, instead of merely pro- 

1 Yates' Minutes, in Elliott's Deh., Vol. I. pp. 415, 416. 

2 Elliott's Deh., Vol. V. p. 197. (Madison's Report.) 

3 Id. p. 216. 

4 Yates' Minutes, in Elliott's Deh., Vol. I. pp. 417, 418. 



358 CAN THE LEGISLATUEE BIND THE CONVENTION ? 

posing amendments to the Articles of Confederation, the dele- 
gates to the former had exceeded their powers. 

§ 386. For the purposes of this inquiry, it is sufficient to note 
respecting the action of the Federal Convention in this case, — 

1. That it is a case of refusal, on the part of a Convention, 
to obey the instructions of the legislative authority by which it 
was convened, in relation to the scope and general character of 
the system it should mature ; but, 

2. That the Convention did not claim a right to disobey, to 
annul, or even to suspend the Acts under which it assembled ; 
that, on the contrary, it admitted, implicitly, the binding force 
of those Acts, which yet it felt itself constrained by necessity to 
disregard. Admitting obedience to be due, it pronounced it, 
under the circumstances, to be impossible. 

3. Finally, that whichever construction, put upon the creden- 
tials of the Convention, be the true one, that of Mr. Hamilton, 
or that of Mr. Randolph and others, the action of that body is 
equally without weight as a precedent to establish the right of 
such a body to disobey the Act that convened it, for on the con- 
struction of Mr. Hamilton, there was no disobedience, and on 
that of Mr. Randolph, the disobedience was confessed and re- 
gretted, but excused on the ground of necessity. 

§ 387. The next case in which the question of the right of a 
legislature to bind a Convention by the Act calling it, came in 
question, was that of the North Carolina Convention of 1835, 
to which attention has ah'eady been called. 

By the Act of January 6, 1835, Sec. 12, it was provided, that 
the Convention thereby called should frame and devise three 
amendments to the Constitution, namely, to reduce the number 
of members in the Senate, to reduce the number of members in 
the House of Commons, and to effect a change indicated in the 
qualifications of voters ; it then provided, that the Convention 
might, in its discretion, propose nine other amendments specified, 
or any one or more of them. After providing for submitting 
such amendments as the body should propose, to the people, the 
Act concluded by declaring, that the Convention should not alter 
any other Article of the Constitution or Bill of Rights, nor pro- 
pose any amendments to the same, except those which were 
therein before enumerated. The 10th Section of the Act had 
provided, that no delegate should take his seat in Convention 



CAN THE LEGISLATURE BIND THE CONVENTION? 359 

until he should have taken an oath not to evade br disregard 
the duties enjoined, or the limits fixed to the Convention by that 
Act. A discussion arising, on the first assembling of the Con- 
vention, whether that body was bound by the Act to take the 
oath prescribed, it was contended by some that the legislature 
had no right to impose an oath, and that consequently they 
were not bound to regard the Act. It was also suggested, that 
the Convention could go further and disregard the injunctions 
and limitations of the legislature in relation to the amendments 
it should propose, citing as authority for that view, the alleged 
precedent, just commented upon, in the Federal Convention. 
On the whole, however, better counsels prevailed. The Con- 
vention was reminded by the Hon. Mr. Gaston, that it was only 
by obedience to the requirements of the Act in relation to the 
oath, that it could become organized. Without first having 
taken the oath, no member could take his seat; and having taken 
the oath, the limitations of the Act could not be disregarded 
without perjury. Unlike the Federal Convention, therefore, 
which was constrained by necessity to disobey the Acts under 
which it assembled, the North Carolina Convention was con- 
strained by necessity to obey them, and hence the cases may 
be thought to be equally indecisive as precedents upon the ques- 
tion we are discussing. 

§ 388. In 1833, a judicial opinion was delivered by the judges 
of the Supreme Court of Massachusetts, which has some bear- 
ing, perhaps, upon the question of the binding force of Acts of 
Assembly upon Conventions. The facts of the case, as derived 
from the opinion, are, that the legislature of Massachusetts, hav- 
ing under consideration a proposition for calling a Convention 
to revise the Constitution, and desiring to limit the latter to par- 
ticular amendments, entertained a doubt whether or not that 
body would be bound to respect the limits it should impose, and 
accordingly the House of Representatives requested the opinion 
of the Supreme Court upon the following question, namely, 
" Whether, if the legislature should submit to the people to vote 
upon the expediency of having a Convention .... for the 
purpose of revising or altering the Constitution of the Common- 
wealth in any specified parts of the same, and a majority of 
the people voting thereon should decide in favor thereof, could 
such Convention, holden in pursuance thereof, act upon and 
propose to the people, amendments in other parts of the Consti- 



360 CAN THE LEGISLATUEE BIND THE CONVENTION? 

tution not so specified ? " Upon this question the Court said : — 
" Considering that the Constitution has vested no authority in 
the legislature in its ordinary action to provide by law for sub- 
mitting to the people the expediency of calling a Convention of 
delegates for the purpose of revising or altering the Constitution 
of the Commonwealth, it is difficult to give an opinion upon 
the question what would be the power of such a Convention, if 
called. If, however, the people should, by the terms of their 
vote, decide to call a Convention of delegates, to consider the 
expediency of altering the Constitution in some particular part 
thereof, we are of opinion, that such delegates would derive 
their whole authority and commission from such vote ; and 
upon the general principles governing the delegation of power 
and authority, they would have no right, under such vote, to 
act upon and propose amendments in other parts of the Consti- 
tution not so specified."^ 

§ 389. Whether the general idea contained in this opinion 
respecting the source of the validity of the supposed limitations 
upon the action of the Convention, namely, that it was to be 
sought alone in the vote of the people, be a correct one or not, 
will be the subject of consideration further on. Assuming for 
the present, however, that the idea was a mistaken one, and that 
those limitations derived their binding force from the Act of As- 
sembly either alone or in conjunction with the subsequent ex- 
pression of popular approval, the Act being considered, in either 
event, as an act of ordinary legislation, the views expressed by 
the Court would seem to indicate that a Convention might be 
bound by an Act of a legislature. The Court admit, that, in *the 
case supposed, the Convention would not be competent to over- 
pass the limits imposed by the vote of the people by which it 
was called ; from that vote " they would derive," say they, " their 
whole commission and authority ; " " and upon the general prin- 
ciples governing the delegation of power and authority, they 
would have no right, under such vote, to act upon and propose 
amendments in other parts of the Constitution not so specified." 
But suppose it were demonstrated that the efficacy of the call, 
with its limitations, depended not on the vote of the people, but 
on the Act of the legislature, preceding and requiring such vote, 
can it be doubted that the Convention would be equally bound 

1 Opinion of the Justices of the Supreme Judicial Court, &c., 6 Cush. R. 573. 
See Appendix C, post. 



CAN THE LEGISLATURE BIND THE CONVENTION ? 361 

by it? The Act then would constitute its commission, the 
source from which all its authority would be derived ; and the 
principles governing the delegation of power and authority would 
seem as much as ever to establish that, under such a law, it 
would have no right to act upon or propose amendments in 
other pafits of the Constitution not specified in it. It becomes 
important then to determine, if possible, the true source of the 
validity of the call of a Convention made under such circum- 
stances. Does it flow from the power of the legislature, or from 
the power of the people giving its sanction to what a legislature 
has recommended ? 

§ 390. This interesting and perplexing question has been the 
subject of extended discussion in several Conventions. It arose 
in New York, in 1846, upon the following facts. In 1845, the 
legislature of the State had passed an Act recommending to the 
people a Convention, and prescribing the manner in which it 
was to be elected and held. By this Act it was provided, that 
the people, at the fall election of that year, should pass upon 
the question of Convention or no Convention, and if they should 
decide for a Convention, that the delegates were to be chosen in 
April, 1846, and to assemble in June of the same year. It was 
also, by the seventh section, provided, that " the number of del- 
egates to be chosen to such Convention shall be the same as the 
number of members of Assembly from the respective cities and 
counties in this State." 

By the existing Constitution of New York, the apportionment 
of members of the General Assembly made in the spring of 
1836, took effect for the purpose of electing the members in the 
fall of that year, but not for any other purpose, until the first 
day of January, 1837 ; and it was to remain unaltered for ten 
years. In other words, the representation from " the respective 
cities and counties " of the State, in the Assembly, from the 
commencement of the political and calendar year 1837, to the 
commencement of the political and calendar year 1847, was to 
remain the same. When the legislature met in the early part 
of the year 1846, after the Act calling the Convention had been 
ratified by the people, but before the delegates had been elected 
under it, an Act was passed making a new apportionment of 
representatives to the Assembly, increasing the number, and a 
bill was introduced for an Act providing that the number of 



362 CAN THE LEGISLATDEE BIND THE CONVENTION? 

delegates to be chosen in and by the respective cities and coun- 
ties to the Convention, to be held by virtue of the Act of 1845, 
should be the same as the number of members of the Assembly, 
to be chosen in pursuance of the new apportionment. In other 
words, the Act calling the Convention was proposed to be modi- 
fied by the body which had originally passed it, after it had been 
voted upon by the people. 

§ 391. Upon this bill, a question was raised as to the power 
of the legislature — whether it could change the rule of appor- 
tionment, as applicable to the Convention, prescribed in the Act 
voted on by the people. The subject was referred to the judges 
of the Supreme Court of the State for their opinion, who de- 
cided — 

First, that the new apportionment for members of the' Assem- 
bly not taking effect until the first day of January, 1847, the 
provision of the Convention Act of 1845, to the effect, that " the 
number of delegates to be chosen to such Convention shall be 
the same as the number of members of Assembly from the re- 
spective cities and counties in this State," meant the number of 
members to which they were entitled under the apportionment 
in force when the Act of 1845 was passed, and which would be 
in force until after the delegates had been chosen and their labors 
terminated ; and, secondly, that inasmuch as the existing Con- 
stitution had omitted to confer upon the legislature any power 
to call a Convention, the Act passed for that purpose and 
referred to the people was beyond its jurisdiction, and could 
operate only by way of advice or recommendation, and not as a 
law; that, under such circumstances, the calling of a Conven- 
tion was an act proper only for the people themselves ; and that, 
consequently, the Act of 1845 derived its obligation from the 
popular vote of ratification and not from the power of the legis- 
lature to pass it. From this, the inference was drawn that the 
legislature had no power to suspend or alter any of the pro- 
visions of that Act.i 

§ 392. In the course of this opinion the Court say : — 

" The legislature is not supreme. It is only one of the instru- 
ments of that absolute sovereignty which resides in the whole 
body of the people. Like other departments of the government, 

1 For this opinion, see Appendix D, post ; also Deb. Mass. Conv. 1853, Vol. 
I. p. 138. I have not found it in the New York Law Reports. 



CAN THE LEGISLATURE BIND THE CONVENTION? 363 

it acts under a delegation of powers, and cannot rightfully go 
beyond the limits which have been assigned to it. This delega- 
tion of powers has been made by a fundamental law, which no 
one department of the government, nor all the departments 
united, have authority to change. That can only be done by 
the people themselves. A power has been given to the legisla- 
ture to propose amendments to the Constitution, which, when 
approved and ratified by the people, become a part of the fun- 
damental law. But no power has been delegated to the legis- 
lature to call a Convention to revise the Constitution. That is a 
measure which must come from the people themselves. Neither 
the calling of a Convention, nor a Convention itself, is a pro- 
ceeding under the Constitution. It is above and beyond the 
Constitution. Instead of acting under the forms and within 
the limits prescribed by that instrument, the very business of a 
Convention is to change those forms and boundaries, as the 
public interests may seem to require. A Convention is not a 
government measure, but a movement of the people, having for 
its object a change, in whole or in part, of the existing form of 
government. 

" As the people have not only omitted to confer any power on 
the legislature to call a Convention, but have also prescribed 
another mode of amending the organic law, we are unable to 
see that the Act of 1845 had any obligatory force at the time 
of its enactment. It could only operate by way of advice or 
recommendation, and not as a law. It amounted to nothing 
more than a proposition or suggestion to the people, to decide 
whether they would or would not have a Convention. That 
question the people have settled in the affirmative, and the law 
derives its obligation from that Act, and not from the power of 
the legislature to pass it. The people have not only decided in 
favor of a Convention, but they have determined that it shall be 
held in accordance with the provisions of the Act of 1845. No 
other proposition was before them, and of course their votes 
could have had reference to nothing else. They have decided 
on the time and manner of electing delegates, and how they 
shall be apportioned among the several counties. 

" If the Act of the last session is not a law of the legislature, 
but a law made by the people themselves, the conclusion is ob- 
vious, that the legislature cannot annul it nor make any sub- 



364 CAN THE LEGISLATURE BIND THE CONVENTION'? 

stantial change in its provisions. If the legislature can alter ihe 
rule of representation, it can repeal the law altogether, and thus ' 
defeat a measure which has been willed by a higher power." 

§ 393. Now, in reference to this opinion, which, as being that 
of a highly respectable court of final resort in the most impor- 
tant State in the Union, seems to be possessed of very great 
authority, the following observations occur to me as justified as 
well by its tenor as by the circumstances under which it was 
rendered. 

1. The opinion was extrajudicial. The Constitution of the 
State did not authorize the legislature, much less one of its 
separate houses, to refer questions arising in the course of its 
deliberations to the judiciary for adjudication. In point of legal 
authority, therefore, it is entitled to no greater weight than it 
deserves on account of its intrinsic wisdom. 

2. How much authority the opinion ought to carry with it on 
this account, may be inferred from the estimate put upon it 
by the judges themselves. In the concluding paragraph they 
say : — 

" We cannot close this communication without expressing 

/our regret that questions of so much delicacy and importance 

I should be presented under circumstances which have given but 

/ a few hours for conferring together, and reducing our opinion to 

1 writing. Neither of us had either examined or thought of the 

questions until after the reference was made ; and it was not 

until this day that we were able to meet and consult together 

on the subject." 

3. What its authors thus seemed to regard as deserving of 
little consideration, was certainly so esteemed by the legisla- 

I ture. That body entirely disregarded the legal determinations 
■; of the Court on the question of power. It also disregarded, 
'; not without an appearance of contempt, a positive recommen- 
dation which the opinion contained. After declaring that the 
legislature had no power to pass the law then under consider- 
ation, the judges added, that "if, however, the legislature 
should think otherwise, it is then proper that we should take 
some notice of the bill which has been referred for our consider- 
ation." Accordingly, observing that the bill in its terms merely 
declared that the true intent and meaning of so much of the 
Convention Act of 1845, as related to the number of delegates 



CAN THE LEGISLATURE BIND THE CONVENTION? 365 

to be chosen to the Convention, was, that that number should 
be the same as the number of members of the Assembly, ac- 
cording to the apportionment of 1845, the judges said that, in 
their opinion, such was not the true intent and meaning of said 
Act, and they therefore recommended that, if it was deemed ex- 
pedient to legislate on the subject, there should be a positive 
enactment, instead of a mere declaration of opinion. In spite 
of this recommendation, however, the legislature passed the 
bill, in the precise form it bore when referred to the judges. 
To this it may be added, that the people in like manner disre- 
garded the opinion; for they elected their delegates according 
to the new apportionment. 

§ 394. 4. Coming to the substance of the opinion, there is con- 
tained in it, in my judgment, with much that is excellent, much 
also that is fallacious and of the worst possible tendency. With 
the latter is to be classed all those parts of it which relate to the 
power of a legislature to call a Convention ; to the essential 
character and relations of the latter to the existing government, 
and to the source whence is derived the efficacy of a law calling 
a Convention under the circumstances detailed in the opinion. 
What I have to say upon the last point will be deferred till the 
case arising in the Massachusetts Convention of 1853, in which 
the same question was broached, is brought under discussion. 
The two other points will be briefly considered here. 

I. The assertion, that where express authority to call a Con- 
vention has not been given by the Constitution, a legislature 
has no power to do it, I deem to be unfounded, for two reasons : 
first, as contravening sound political principles ; and secondly, 
as falsified by well-established usage under the American sys- 
tem. 

First. It has been seen in previous sections of this chapter, 
that under the general grant of legislative power found in our 
State Constitutions, a legislature is competent to provide by 
law for all exigencies requiring provisions of a legislative nature, 
so far 'as it is not restrained by the rules of morality, or by ex- 
press constitutional inhibitions. In my view, this covers the 
whole case. The making of provision for the assembling of 
Conventions, and the hedging of them about with the restric- 
tions needed as well for their efficiency as for the safety of the 
Commonwealth, is emphatically a matter of legislation. It is> 



866 CAN THE LEGISLATURE BIND THE CONVENTION? 

moreover, a matter of legislation not fundamental in character, 
but of that species which our Constitutions apportion exclu- 
sively to the legislative departments created by them. The 
legislation necessary to initiate and to temper the operations of 
a Convention, no department of the government is competent 
to effect but the legislature ; the sovereign itself could not do 
it, nor the electors, — bodies whose organization is such as to 
make deliberation upon the details of laws impossible. 

§ 395. Nor is it true, as intimated by the judges in the opin- 
ion, that the giving to the legislature in a Constitution express 
power to recommend specific amendments to that instrument, 
involves, by implication, the denial to that body of power to 
call Conventions for a general revision of it. We shall see in a 
subsequent part of this work,^ that such a grant is applicable 
only to disconnected and unimportant amendments. It is obvi- 
ous that a grant of power to propose such amendments in a 
summary manner, and without the formalities ordinarily attend- 
ing the enactment of fundamental laws, cannot be considered 
as an implied prohibition to effect a general revision of a Con- 
stitution in the only way possible, that is, by the call of a 
Convention. If it be not in the power of a legislature to call 
a Convention, that fact is not to be inferred from a positive 
authority to effect a different object in a different way. The 
idea -advanced by the Court is based on the legal maxim, ex- 
pressio unius est exclusio alterius, — a maxim doubtless of wide 
application in the construction of ordinary statutes, and of con- 
tracts between man and man, but whose applicability to the 
construction of fundamental laws has been denied by high 
judicial authority.^ 

§ 396. Secondly. It is too late to deny the right of a legisla- 
ture, in the absence of express constitutional authority, to call 
a Convention, and in general to impose upon it conditions in 
relation to its organization, and, to some extent, its proceedings. 
Though doubtless considered irregular in its earlier stages, the 
usage has become established for legislatures to take the initia- 
tive in such cases, as of course ; and since the year 1820, when 
the New York Council of Revision vetoed a Convention Bill 

1 See post, §§ 538-540. 

2 Barto V. Himrod, 4 Selden's K. 483 (493), per Willard, J. See also 
Broom's Legal Maxims, pp. 540, 541. 



CAN THE LEGISLATURE BIND THE CONVENTION? 367 

because the legislature had passed it without providing for a 
submission of it to the people, not as being beyond its power, 
but as inexpedient, the power has very frequently been exercised. 
The eminent judges composing that council did not question 
the right of the legislature to call a Convention, but insisted 
that it was " most safe and wise," and " most accordant with 
the performance of the great trust committed to the representa- 
tive powers under the Constitution," that Conventions to alter 
that instrument " should not be called at the instance of the 
legislature without the previous sanction of the people ; " and 
they cite numerous instances in which legislatures, desiring to 
call Conventions, were required by constitutional provision to 
submit the question of the expediency of so doing to a pop- 
ular vote.^ It is noticeable, moreover, that the GeneraLAssem- 
bly of New York had, at the time the opinion we are consider- 
ing was delivered, twice exercised the power in that opinion 
declared to be so doubtful, — once in 1801, without submit- 
ting the question of a Convention to the people ; and again in 
1821, after an affirmative vote of the people, pursuant to the 
advice of the Council of Revision. 

The first point, then, made by the Court, relating to the 
power of the legislature, was not well taken. 

§ 397. II. The other point, touching the character and rela- 
tions of the Convention to the existing government, was equally 
without force. . The judges assert that " neither the calling of a 
Convention, nor a Convention itself, is a proceeding under the 
Constitution." " It is," they say, " above and beyond the Con- 
stitution ;".... and they add, " a Convention is not a gov- 
ernment measure, but a movement of the people, having for 
its object a change in whole or in part of the existing govern- 
ment." 

Upon these extraordinary statements I remark — 

1. That they all beg the question, — in my judgment, the 
most important question in American public law, — Whether, 
as Justice Wilson said in the Pennsylvania Convention to ratify 
the Federal Constitution, the sovereignty in our governments 
" is and remains in the people ; " or whether, upon the call of a 
Convention, it shifts its locus into the hands of a majority of its 
members. Of the proposition that " a Convention is not a pro- 
1 See Appendix B, for the entire opinion of the Council. 



368 CAN THE LEGISLATUEE BIND THE CONVENTION ? 

ceeding under the Constitution, but above it," what evidence is 
adduced except the mere dictum of the judges themselves, pass- 
ing extra-officially upon a question of infinite magnitude, on 
which, as they admit, they had heard no argument, and about 
which they had never thought until the reference was made four 
days before, or consulted together until the very day the opinion 
was written ? 

So far from a Convention not being a proceeding under the 
Constitution, but above it, it is one of the chief excellencies of 
our system that, under it, those constitutional reforms which 
elsewhere have generally required for their consummation out- 
breaks of revolutionary violence, are anticipated and carried 
through by the voluntary and peaceable operation of the gov- 
ernment itself. In this respect, one of our governments, as 1 
have many times intimated, exhibits the qualities of a vital 
organism, in which are bound up distinct but interdepend- 
ent systems, whose objects are respectively the defence, the 
growth, and the reparation or renewal of the economy. 

On the other hand, the theory of the judges supposes in the 
Commonwealth two independent and mutually antagonistic 
orders of agencies : one constituting the government, charged 
with the regular administration of the laws, and responsible for 
the safety of the public liberties ; and the other, forming the 
Convention, an eccentric and irresponsible body, somehow 
launched into the system, to play havoc with the Constitu- 
tion and laws lying under its feet. It is enough to exhibit, side 
by side, the two theories of the state, to see which is the true 
one. The one regards it as a single, complete, living organism, 
possessing in itself all the powers necessary to insure its ben- 
eficent operation and its continuity. The other makes of it a 
dual system of unrelated and hostile organizations, whose ten- 
dency must be to conspire, not for the good of the whole, but 
for the destruction of each other. 

§ 398. So, of the assertion that a Convention is not a govern- 
ment measure. If by that is meant that a Convention is an in- 
stitution which can legitimately come into being, and run its 
career, in opposition to the government, or without its consent, 
supervision, or control, the statement is manifestly untrue, unless 
the Convention is itself the government. There is no escaping 
from this dilemma. If the government retains its powers at all, 



CAN THE LEGISLATURE BIND THE CONVENTION ? 869 

it must retain them wholly, and it must govern the Convention 
as well as individual citizens. If, when a Convention assembles, 
on the other hand, the government is shorn of its powers, or re- 
tains them only so far as they are not appropriated by the Con- 
vention, it ceases to be the government, — it is but a subaltern 
agency, existing only by the sufferance of another, which is 
supreme. 

§ 399. Again. The judges say that the calling of a Conven- 
tion " is a measure that must come from the people themselves." 
By the term " people " in this clause, must be meant either the 
whole body of the nation, that is, the sovereign, or the electoral 
body. Whichever was intended, nothing could be more absurd, 
if it was meant thereby to assert, that it is competent for the 
people to call Conventions and carry through constitutional 
changes, independently of the existing government. If the leg- 
islature, as the judges say, " is only one of the instruments of 
that absolute sovereignty, which resides in the whole body of 
the people," the coordinate departments which, together with 
the legislature, constitute the government, must be authentic 
representatives of that absolute sovereignty ; and a Convention 
can be nothing' more. Whatever, then, comes from the govern- 
ment, acting within the scope of its powers, comes from the 
people. This is as true of legislatures as of Conventions. The 
one are no less " instruments of absolute sovereignty," referred 
to, than are the other. But admitting the competency of the peo- 
ple to call Conventions, it would be impracticable, except through 
legislative interposition. All they can do is, to pass upon propo- 
sitions submitted to them, under the direction of some agency 
having power to deliberate, and not too numerous to assemble 
and act for the whole. Any other course would lead to local 
and conflicting determinations. It is perfectly true, that the 
calling of a Convention is a measure that must come from the 
people themselves, but from the people acting through their 
accustomed and recognized agents, not through persons or bod- 
ies, unknown to the law, self-elected and irresponsible. 

§ 400. In the Massachusetts Convention of 1853, a similar 
question arose, and led to a very elaborate discussion, upon a 
state of facts not unlike those above detailed. 

In a former part of this chapter,^ we have seen, that a question 

1 See ante, §§ 340-347. 
24 



370 CAN THE LEGISLATURE BIND THE CONVENTION ? 

was Started in that Convention as to its power to issue a pre- 
cept for the election of a member to fill a vacancy, from the 
town of Berlin ; that the Convention decided to issue, not a 
precept, but a simple notice, informing the town of the vacancy, 
and that, on motion of Mr. Butler, of Lowell, it adopted a form 
of notice, of which the concluding and material part was as fol- 
lows — addressed to the selectmen of the town : — . . . . "I am 
directed, by a vote of the Convention, to request you to convene 
the qualified electors of your town, as soon as may be with a 
due regard to notice, in order to their electing and deputing a 
delegate to represent them in this Convention, in the manner pre- 
scribed by the second section of the Act calling the Convention, 
adopted by the people on the second Monday in November, a. d. 
1852." 

Of the last clause of this notice, upon which the discussion 
arose, the meaning is this : By the Act of May 7, 1852, the 
question of calling a Convention to revise the Constitution of 
Massachusetts, was to be submitted to the people of the State 
on the second Monday of the following November, the Conven- 
tion, if voted for, to be elected on the first Monday of March, 
1853, and to meet on the first Wednesday in May, 1853. It 
was further provided, that all the regulations for voting at the 
general elections of State officers, should apply to the elec- 
tion of delegates to the Convention, one of which regulations 
was, that all ballots were to be cast in sealed envelopes, and, 
if tendered without them, were to be neither received nor 
counted. 

§ 401. Under this Act, a vote of the people was taken on the 
second Monday of November, 1852, Yes or No, on the following 
question prescribed therein : — "Is it expedient that delegates 
should be chosen to meet in Convention for the purpose of re- 
vising or altering the Constitution of government of this Com- 
monwealth ? " The result of the election was a majority of 
about seven thousand in favor of a Convention. On the first 
day of March, 1853, a few days before the delegates to the Con- 
vention were to be elected, in pursuance of the foregoing Act, 
the legislature of Massachusetts, then in session, passed an Act, 
leaving it optional with the voters at all elections held in the 
State, to use the sealed or open ballots, as they might choose. 
It was not disputed, that the intention of the legislature was, 



CAN THE LEGISLATURE BIND THE CONVENTION ? 371 

that this rule should govern the election of delegates to the Con- 
vention. When, therefore, Mr. Butler moved, as above stated, 
that the town of Berlin be requested to elect a delegate " in the 
manner prescribed by the second section of the Act calling the 
Convention, adopted by the people on the second Monday in 
November, a. d. 1852," it was his intention to insinuate that the 
Act of March 1, 1853, modifying that of May 7, 1852, was for 
that purpose inoperative and void, and to recommend that it be 
disregarded by the electors in the Berlin election, though its va- 
lidity as to all other elections was not denied. This raised the 
question as to the power of the legislature to modify or repeal 
the Convention Act, after it had been adopted by the people ; 
in other words, the question, whence does an Act passed with 
the formalities indicated, derive its efficacy ? Is it from the 
legislature, or is it from the people acting in their primary ca- 
pacity ? — a question, evidently, of great importance ; for, if the 
validity of such an Act comes alone from the legislature, that 
body might repeal it at its pleasure ; whilst, if it be derived 
from the people, the people alone would have power to alter 
or annul it. 

§ 402. By Mr. Butler, Mr. Hallett, and others, who favored the 
restriction of the voters of Berlin to the mode of voting prescribed 
by the Act of 1852, the opinion of the New York judges above 
commented on, was cited as a decisive authority for that restric- 
tion, — the ground being taken by them, for the reasons stated 
in the opinion, that the legislature was incompetent, by its Act 
of March 1, 1853, to change the provisions of the previous Act 
passed upon by the people. They contended, that when the 
people adopted the Convention Act in November, 1852, they 
adopted the whole law, and not simply answered the question, 
whether it was expedient that delegates should be elected to a 
Convention to revise the Constitution ; that consequently every 
provision of that Act was adopted by them and in force, and 
that those provisions severally derived their efficacy from the 
same source, the people, through the vote taken upon them ; that 
the same conclusion would follow from a view of the powers of 
the legislature ; for that, by the Constitution of the State — 
Article Nine of the Amendments of 1820 — a mode had been 
provided, in which, by the recommendation of the legislature, 
followed by a vote of the people, " any specific and particular 



372 CAN THE LEGISLATURE BIND THE CONVENTION? 

amendment to the Constitution " might be made, and that, be- 
side that, the Constitution contained no grant of power to the 
legislature to meddle with the Constitution, much less to con- 
vene any other body with authority to do it; that, accordingly, 
when the legislature submitted to the people the Act of May 7, 
1852, it submitted it not as a law, since it had been drawn up 
outside the proper province of that body, but as a recommenda- 
tion merely, to be rendered effectual and valid as a law only by 
the fiat of the people ; that, consequently, the legislature, having 
had no authority to pass, were equally incompetent to repeal or 
modify the law, when put in force by the popular vote. 

§ 403. On the other hand, it was contended by Mr. Choate, 
and Judges Parker and Morton, that the order respecting the 
mode of voting to fill the vacancy from Berlin, could be defended 
only on one of these two grounds : either, first, that the Act of 
March 1, 1853, was wholly void, so far as related to the mode 
of voting for delegates to the Convention, because the legisla- 
ture had no constitutional power to enact it ; or, secondly, that 
althousrh it was admitted to be a valid Act, and one which could 
be enforced in a court of justice, the Convention, by some tran- 
scendent power, might, for its own action, at least, annul it ; that, 
as to the first hypothesis, it was perfectly clear, that a legislature 
possessed, at any moment, exactly the powers which the then 
existing Constitution gave it, or allowed to it, neither less nor 
more, — its power over subjects of public concernment remain- 
ing the same, so long as the Constitution remained the same ; 
that, assuming that the legislature, which, by the Act of May 7, 
1852, ordained, that the sealed envelope should be used in voting 
for delegates to the Convention, had power to make such a pro- 
vision — which nobody had yet called in question — then the 
legislature which sat in March, 1853, had power to modify that 
provision, if the Constitution which existed in May, 1852, existed 
without change in March, 1853 ; in other words, if one legislature 
could constitutionally prescribe the use of one kind of ballot for 
a future election, a subsequent legislature, at any time before 
such election, might prescribe the use of a different kind of bal- 
lot, if the whole and every part of the Constitution continued 
all the while unchanged ; that the power of a legislature to pass 
such a law was derived from that provision of the Constitution 
which empowered the general court to pass all manner of laws 



CAN THE LEGISLATURE BIND THE CONVENTION ? 373 

deemed by it to be " good and wholesome ; " that the moment 
a Convention is authoritatively called, whether, under the Mas- 
sachusetts Constitution, the legislature could call one or not, 
then — in the absence, at least, of a mode of voting prescribed 
by the sovereign power — the power of the legislature to make 
good and wholesome regulations touching times and places and 
modes of voting, the place of the sitting of the Convention, and 
the like, attached and was quickened into activity, and con- 
tinued perfect, at least till the elections were consummated ; 
that the alleged power of the people to enact a law about sealed 
envelopes or any thing else, does not exist, in the light either of 
the Constitution or of historical facts ;i that, laying aside the 
former, the fact was, that the legislature caused to be presented 
to the people, according to the forms of law, the question, 
whether they deemed it expedient that a Convention should be 
called to consider of revising the Constitution ; that the people 
answered Yes, and there they rested ; that they never passed 
upon the sealed envelope, or any other detail of the law what- 
ever ; that the second hypothesis referred to, of some transcend- 
ent power in the Convention, by virtue of which it was enabled, 
although the law of March 1, 1853, was valid, to annul it, was 
equally unfounded ; that if the power existed, so far as the Con- 
vention's own action was concerned, disobedience to it by the 
selectmen of Berlin, under the recommendation of the Conven- 
tion, would not for that reason be lawful or go unpunished ; that 
the power, however, was not admitted, but tested, as it must 
be, by its consequences and results, it was extravagant and ab- 
surd ; that its exercise was without precedent in the history of 
American constitutional liberty ; that no Convention, called 
together under a statute of the existing government to revise 
a Constitution — and all American Conventions, or all, with 
scarcely an exception, had been so called — had ever yet assumed 
to nullify the law of election prescribed by the authority which 

1 Keference is here made evidently to ordinary laws. Of the power of the 
people to enact fundamental laws there is not only no doubt, but it is clear that 
no other body has power to enact them, except by express warrant for the par- 
ticular occasion. For an exposition of the general principle stated above, that 
the people have not the power of ordinary legislation, under our Constitutions, 
and cannot be invested with it by the legislature, see the cases cited below, 
§ 418, note. 



874 CAN THE LEGISLATURE BIND THE CONVENTION? 

called it together ; that, finally, the people, by the vote ratifying 
the Act of May 7, 1852, willed two things : first, that there 
should be a Convention ; second, that it should be called by 
the legislature, sitting as a legislature, as part of the established 
government ; and that the elections of its members should be 
conducted exactly as that legislature should prescribe in the ex- 
ercise of its ordinary unfettered discretion — conclusions that 
flow directly from the fact that the people had responded favor- 
ably to the proposal of a Convention ; they rested there, thus 
leaving it, by irresistible implication, to the legislature to carry 
out their will in its own way, and that then two successive leg- 
islatures assumed to make the needful regulations for electing 
the Convention accordingly, and the people assembled, pursuant 
to custom, and under those regulations cast their votes and 
retired.^ 

§ 404. To these arguments I shall add one or two observa- 
tions, calculated, as I think, to place the subject under consider- 
ation in a still clearer light. The principal point made by the 
judges of the New York Supreme Court, before referred to, 
and by the advocates of the sealed envelope in Massachusetts, 
citing the decision of those judges as their main authority, was, 
that the Acts passed by the legislatures of those States respec- 
tively, and adopted by the people, derived their sole efficacy 
from the popular vote, and were therefore incapable of a subse- 
quent repeal or modification by the same or another legislature. 
Whether this was so or not depends mainly upon the terms of 
those Acts, ascertaining the extent to which the people were re- 
quired to pass upon them. Those Acts consisted of two parts : 
first, of one or more sections submitting to the people a single 
question, Whether or not they deemed it expedient to call a 
Convention and, secondly, of sections prescribing the time, 
mode, and conditions of the election at which the question was 
to be answered ; and, in case of an affirmative answer, provid- 
ing for the election of the delegates, and the assembling, organi- 

1 See speeches of Messrs. Choate, Parker, Morton, and others, in Deb. Mass. 
Conv. 1853, Vol. I. pp. 73, 83, 116, 117, 144. In this debate Judge Parker 
contended, that not only could a legislature modify the Act calling a Conven- 
tion, under the circumstances detailed in the text, but that it could wholly 
repeal the Act, even after the Convention had commenced its session, thus put- 
ting an end to its existence. Id. p. 155. 



CAN THE LEqiSLATURE BIND THE CONVENTION? 375 

zation, and conduct of the Convention. The same is true of 
all the Acts calling Conventions which have come to my knowl- 
edge, except the few which contained no provision for a prelim- 
inary vote of the people on the question of Convention or no 
Convention. Thus the terras of the Massachusetts Act of May 
7, 1852, are as follows : — 

The first section is, in substance, that " the legal voters of the 
State, at the November election, 1852, shall give in their votes 
by ballot on this question, ' Is it expedient that delegates should 
be chosen to meet in Convention for the purpose of revising or 
altering the Constitution of government of this Common- 
wealth ? ' " The last clause contains absolutely every thing 
that was submitted to the people. The Act then proceeds as 
follows : The Governor and Council shall count the votes, and 
on the first Wednesday in January, 1853, shall make known the 
result ; and if a majority of the votes are in favor of a Conven- 
tion, it shall be taken to be the will of the people that a Conven- 
tion should meet accordingly ; and the Governor shall call upon 
the people to elect delegates to meet in Convention, &c. The 
second, third, fourth, and fifth sections are in the same impera- 
tive terms : " the inhabitants shall elect one or more delegates '' ; 
" every ^person entitled to vote for representatives, &c., shall have 
a right to vote;^^ "the same officers shall preside at such elec- 
tions,''^ &c. ; the votes for said delegates " shall be received, sorted, 
and counted, &c., in the same manner as is now provided," &c ; 
" all laws now in force shall apply and be in full force ; " " the 
persons so elected shall meet in Conventions^ at a time and place 
specified ; " they shall be judges of the returns and elections of 
their own members ; they shall proceed, as soon as may be, to 
organize themselves in Convention ; " " and such alterations or 
amendments, when made and adopted by the Convention, shall 
be submitted to the people,^'' &c. ; " and, if ratified by the people, 
in the manner directed by said Convention, the Constitution 
shall be deemed and taken to be altered and amended accord- 
ingly ; " " and if not so ratified, the present Constitution shall be 
and remain the Constitution of government of this Common- 
wealth." 

The New York Act was substantially identical with the one 
just described, differing from it only in the unimportant particu- 
lar, that, at the preliminary election, the inspectors of election 



376 CAN THE LEGISLATURE BIND THE CONVENTION ? 

were required to prepare ballots, on which should be written, 
" Convention," and " No Convention," and all citizens were 
" allowed " to cast one or the other of them, as they should 
deem best. Should the result of the election be a vote in favor 
of a Convention, the remaining twelve sections of the Act, con- 
sisting of imperative provisions, similar to those above quoted, 
were to take effect. 

§ 405. Now, although it is true that, in these Acts, the imper- 
ative provisions were most of them pivoted upon the contin- 
gency of an affirmative answer to the question of " Convention 
or no Convention," and that, in case a negative answer should 
be given, they would lose their entire force as laws, yet it is also 
true that, so far as those Acts were ever to have force as laws, 
they were to derive it from the legislature. They were couched 
in the language of laws, of commands, addressed by a superior, 
able to enforce them, to inferiors ; they differed from other laws 
merely in being made conditional, as to their taking effect, upon 
the happening of a future event, the affirmative vote of the 
people upon a single question. If the event did not happen, the 
laws would remain inoperative ; if it did happen, they would at 
once go into effect. 

Now, what degree of efficacy is to be attributed to such con- 
ditional Acts, and what the source from which that efficacy is 
derived, are legal questions, upon which, fortunately, there is no 
lack of authority. Our State legislatures have, within the last 
twenty years, in many cases, passed Acts relating to the sale of 
intoxicating liquors, to schools, railroads, &c., and required, be- 
fore they should take effect, that they should be submitted to the 
people. If approved by the people, they should be enforced, and 
if not, they should not. By our Constitutions, the power of 
passing laws having been exclusively committed to our General 
Assemblies, the objection has been raised, in these cases, that 
the Acts were unconstitutional, as attempting to transfer to the 
people the right to make laws. The courts, however, have, in 
many of the cases, sustained the action of the legislature, on 
the ground that the laws were perfect and complete as such, 
when passed by that body, but were made contingent, as to 
their taking effect, upon the happening of a future event — the 
approving vote of the people.^ When, on the other hand, by 

^ Barto I'. Himrod, 4 Seld. R. 483 ; with which compare The People v. Collins, 
3 Mich. R. 343. 



CAN THE LEGISLATURE BIND THE CONVENTION? 377 

the terms of the Acts, the fiat which is to make them laws is to 
be spoken by the people, they have been holden to be unconsti- 
tutional. 

The analogy between these cases and those of the Conven- 
tion Acts of New York and Massachusetts, is, in my judgment, 
complete. These Acts were in terms imperative, per verba de 
presenti, and but for the contingency provided for of a popular 
vote, they would have gone into immediate effect. With that 
provision, however, they stood thus : If the people should, at 
the election provided for, vote that a Convention was inexpe- 
dient, none would be held ; and of course those provisions re- 
quiring an election of delegates to form one, would not go into 
effect ; otherwise they would. 

§ 406. Again : When a Convention Act is submitted to the 
people, it is clear that it is the mere question of the expediency 
of a Convention that is passed upon. The people have no 
power of deliberation, or of suggesting amendments, but merely 
of pronouncing upon single propositions, yea or nay. An affirm- 
ative vote declares it to be expedient, a negative to be inexpe- 
dient, to call a Convention — a declaration which has neither 
the form nor the effect of a law. The language of a law is 
^^fiat " — let it be done ; that of such an Act of the people is 
" videtur " — it seems good, — " desiderandum est " — it is de- 
sirable — a mere expression of opinion, not the uttering of a 
command. The contrary, however, is true of those parts of 
such Acts which relate to the details necessary to give practical 
effect to a Convention Act. There is no expression of opinion, 
but the uttering of positive commands to the officers of the 
government, voters, &c., contingent, as to their taking effect, 
upon the opinion expressed by the electoral body. 

§ 407. That the construction contended for is the proper one 
to give to such Acts, is inferable from the adjudication of the 
Supreme Court of Illinois upon cases that have arisen in that 
State. By the existing Constitution of the State, that of 1847, 
no Act of the General Assembly authorizing corporations or 
associations with banking powers could go into effect or in any 
manner be in force, unless the same should be submitted to the 
people at the general election succeeding the passage of the 
same, and be approved by a majority of all the votes cast at 
such election for and against such law.^ 

1 111 Const, of 1847, Art. X. § 60. 



378 CAN THE LEGISLATURE BIND THE CONVENTION? 

In 1851, a General Banking Law was passed by the General 
Assembly and submitted to the people, agreeably to the consti- 
tutional provision, and ratified by them. To that part of this 
law prescribing the mode in which taxes should be assessed 
against the corporations thereby created, and the amount of 
their taxable property be ascertained, an amendment was 
made by the General Assembly in 1857, but the amendment was 
not submitted to the people. Against the validity of this 
amendment the objection was raised by one of the banks 
affected by it, that it was void, because it had not been ratified 
by the people as required by the Constitution ; that the General 
Assembly had no power to repeal or modify any clause of the 
General Banking Law which had been submitted to and 
adopted by the people, without the same solemnities that at- 
tended its original passage. In substance, it will be observed, 
this objection was precisely the same as that taken to the New 
York and Massachusetts Acts referred to, namely, that, in ratify- 
ing the General Banking Law, the people had ratified every 
clause of it alike, and so placed all parts of it equally beyond 
the reach of a legislative repeal. The case coming before the 
'Supreme Court, it was held by that body, that the vote of the 
people did not render the clause in question irrepealable by the 
General Assembly. The Court, speaking of the effect of the 
vote of the people, say : — 

" That vote gave to this clause no additional sanction. The 
subject of taxation and the revenue are, by the Constitution, 
placed in the hands of the legislature alone. Upon this subject 
they have complete jurisdiction to legislate independently of the 
popular vote, and such vote in approval of laws which might take 
effect without it, could not place the law beyond or above the juris- 
diction of the General Assembly.^'' ^ 

§ 408. In this case the clause in question was held not to 
have been made irrepealable by the popular vote upon the law 
of which it formed a part, because it related to a subject-matter 
properly cognizable by the General Assembly under its general 
powers granted by the Constitution. And it was so held, al- 
though the Court expressly admitted that the clause sought to 

1 Bank of the Republic v. County of Hamilton, 21 111. R. 53 ; afterwards con- 
firmed by the same Court in Reaper's Bank v. Willard, 24 111. R. 433. 



CAN THE LEGISLATURE BIND THE CONVENTION? 379 

be amended had been submitted to and voted on by the people 
of the State. The Court say : — 

" We are clearly of opinion that some of the provisions of 
this law which was submitted to the people are subject to legis- 
lative interference and control, and among them is the one in 
question. We may safely say that the Constitution did not re- 
quire that the mode of assessing the property of the bank for 
the purposes of taxation should be submitted to the people, and 
its submission to them was a work of supererogation.''^ 

Although, then, an Act in all its parts be submitted to the 
people, and they pass upon it throughout, it is not placed be- 
yond legislative repeal, as to such parts of it as are within the 
general cognizance of the General Assembly, when there is 
nothing in the Constitution requiring the subject-matters com- 
prised within those parts to be submitted to a vote of the 
people. 

It is clear, then, from this decision, that had the New York 
and Massachusetts Convention Acts been submitted to and 
voted on by the people, in toto, section by section, they would 
still have been, in the main, subject to legislative repeal or modi- 
fication. But, as we have seen, it is doubtful whether those 
Acts ever were submitted as a whole. It is pretty certain that 
in neither case was any part of them submitted except that re- 
lating to the expediency of the call of a Convention. 

And with reference to the Illinois case, I may remark, that the 
decision might have been placed, in my judgment, upon broader 
and more solid ground, by holding simply that the Constitution 
of the State required only the question of the expediency of in- 
corporating banking institutions to be passed upon by the peo- 
ple, leaving all questions of details to the General Assembly, to 
which, as involving the exercise merely of a legislative discre- 
tion, they belonged. 

§ 409. The result of the discussion in the Massachusetts Con- 
vention, it should perhaps be stated, was that that body adopted 
by a large majority the notice to the town of Berlin offered by 
Mr. Butler, and the town accordingly elected a delegate to fill 
the vacancy, in the manner pointed out in " the Act calling the 
Convention, adopted by the people on the second Monday of 
November, 1852." The force of this action of the Convention, 
however, as a precedent, is much impaired by the fact that 



380 CAN THE LEGISLATURE BIND THE CONVENTION? 

all the amendments proposed by it were repudiated by the 
people. 

§ 410. The principles settled by the preceding discussion 
make it easy to answer another question relating to the power 
of a legislature over a Convention, namely, Can the former bind 
the latter to submit the fruit of its labors to a vote of the peo- 
ple ? If it be granted that a legislature can bind a Convention 
in any particular, it is plain that the power ought to exist more 
especially in such matters as relate to its modes of organization 
and proceeding, — that is, to questions of method ; and that the 
region of greatest doubt would commence when questions be- 
gan to arise touching what the Convention should or should not 
consider or recommend. Among questions of the former kind, 
relating to its method of procedure, that which is by far of most 
vital consequence is, What disposition shall be made by the 
Convention of the work of its hands ? 

Two courses only are possible : 

First. The Convention might finish its deliberations, and, 
without further ado, publish its work as the supreme law of 
the land ; or. 

Secondly. It might regard its action as only inchoate or pro- 
visional, and accordingly submit the fruit of it to the people, its 
master, for approval or disapproval. 

§ 411. Of the two courses indicated, the first is wholly inad- 
missible in any case \yhatever, that alone excepted in which it 
should be adopted under the express authority of law. The 
reason is, that it would make of the Convention a simple des- 
pot ; and if despotic authority is desired, it would be far better 
to have the concentrated vigor of an absolute monarch, w^hose 
rule is commonly "tempered," if no otherwise, "by assassina- 
tion," into a sort of practical responsibility to the people, or the 
temperate administration of a legislature of two houses, in 
which passion and ambition would, by a system of checks, be 
rendered least dangerous to the Commonwealth. The history 
of liberty has shown, that the most direct road to the ruin of a 
free state is to make a single popular assembly the dispenser of 
its ordinary statute law. But to intrust such a body, without 
check, with the enactment of its fundamental law, would be but 
to discount the national life, — to antedate that final overthrow 
which history shows to be in store for all nations.^ 

1 See Parker v. The Commonwealtli, 6 Barr. 509. 



CAN THE LEGISLATURE BIND THE CONVENTION? 381 

§ 412. The second course is for the Convention to recognize 
the limitation upon its powers, imposed, if not in express terms 
by the Act calling it, then by the principles of constitutional gov- 
ernment, as well as by the customary law regulating the action 
of such bodies in America, and to submit the propositions it 
may mature to a vote of the people. By this course only can 
there be assured to the sovereign or nation at large that firm 
hold upon its liberties, that practical dominion over all function- 
aries empowered to act in its stead, which constitutes a govern- 
ment of law as distinguished from a revolutionary tribunal, in 
which no law is obeyed but the passions or interests of those 
who direct it. 

§ 413. These two courses being the only possible ones, it 
needs no argument to show, not only that the Convention ought 
to follow that which is compatible with the continued healthy 
life of the state, but that there ought to be provided some mode 
in which it may be compelled to follow it — some power by 
which, the possibility of its refusal to do so being anticipated, 
provision may be made against a career of usurpation — by 
which treasonable conduct may be averted by denouncing 
against it summary punishment. Undoubtedly, for this pur- 
pose, the legislature is the department having power to make 
the requisite provisions. To deny to that body the right to 
hedge about the institutions in which our liberties are embodied, 
would be to make it adequate to the transitory and more trivial 
subjects of legislation, but inadequate to those which, while 
they are no less strictly matters of legislative cognizance, far 
transcend in importance all others that can arise. 

§ 414. As a practical question, the right of a legislature to 
require a Convention to submit its recommendations to a vote 
of the people has been several times discussed, and intimations 
have been thrown out that the latter body might disregard the 
requirement, but no attempt has ever been made, so far as I am 
aware, to carry that supposed right into effect. In the Illinois 
Conventions of 1847 and 1862, it was contended by a few mem- 
bers that the Convention was, for the purposes for which it was 
assembled, sovereign, and that, although an act of legislation 
was doubtless needful to bring the body into existence, yet, 
when once born, its sovereignty attached, and it could disre- 
gard all the provisions of the Act at its pleasure. Hence it was 



382 CAN THE LEGISLATURE BIND THE CONVENTION? 

concluded, that those bodies might or might not submit the 
result of their labors to the people, notwithstanding the positive 
injunctions of the legislature, as their own views of expediency 
should dictate. 

In reply to these arguments, I do not deem it necessary to 
adduce any considerations other than those so often urged in 
preceding pages, to refute their fundamental principle — that of 
conventional sovereignty. Those arguments seem to have had 
little effect upon either of the bodies to which they were ad- 
dressed, and possibly were propounded merely to pave the way 
for certain aberrations in the mode of submission to the people, 
which will be hereafter discussed ; for the Constitutions framed 
by those Conventions were each submitted to the people in 
substantial compliance with the Acts under which they assem- 
bled, except a few sections which, for special reasons, and 
contrary to the spirit, if not to the letter, of those Acts, were 
withheld from submission, or submitted in an unusual and ex- 
ceptionable manner. 

§ 415. 3. Connected with the subject of legislatures by their 
Acts binding Conventions, as well as that of submitting Consti- 
tutions to the people just referred to, is a question that arose in 
1857-8, in Kansas, during the struggle that finally resulted in 
the admission of that State into the Union, namely, whether, if 
a Convention has taken upon itself to submit a Constitution 
framed by it to the people, on a particular day and in a particu- 
lar manner, the legislature of the State may alter the time and 
mode of such submission ? This question evidently involves 
directly that of legislative supremacy as between legislatures 
and Conventions, and, therefore, although it might appropriately 
be discussed in other relations than the present, I deem it proper 
to consider it in this connection. The facts under which the 
question arose are as follows : — 

In 1855, the first territorial legislature of Kansas passed an 
Act to take the sense of the people at the election in October, 
1856, on the call of a Convention to form a State Constitution. 
Accordingly, an election was held, at which about 2500 votes, 
cast mainly by pro-slavery voters, were polled, the Free- State 
men not voting. At this election a new legislature was elected, 
all pro-slavery, which met in January, 1857, and in conformity 
with the vote of the 2500 at the preceding October election, 



CAN THE LEGISLATURE BIND THE CONVENTION ? 383 

passed an Act providing for an election of delegates on the 
15th of June, to meet in Convention in September following. 
The delegates elected assembled in Convention at Lecompton, 
September 0th, but soon adjourned over to October, to await the 
result of the general election to be held on the first Monday of 
that month. At this election both parties nominated candidates, 
and after rejecting fraudulent votes, the Free-State party carried 
the Territorial legislature and the delegate to Congress. The 
Convention reassembled in October, after this election, formed 
the Constitution afterwards so famous as the Lecompton Con- 
stitution, and submitted only a portion of it to the people — 
that portion relating to slavery — and that in a form and under 
a test oath which would prevent the Free-State people from 
voting. December 17th following, the legislature, containing a 
Free-State majority, assembled and passed an Act to submit 
the Lecompton Constitution fairly to a vote of the people, on 
the 4th of January, 1858. On the 21st of December, 1857, the 
vote was taken in the manner prescribed by the Convention, and 
resulted as follows : — 

For the Constitution with slavery 6266 

For the Constitution without slavery . . . . 567 

January 4, 1858, in accordance with the Act of the Territorial 
legislature, the people voted as follows : — 

For the Lecompton Constitution with slavery . . . 138 
For the Lecompton Constitution without slavery . . 24 

Against the Lecompton Constitution . . . .10,226 

§ 416. Here the discrepancy being so enormous, and the ap- 
parent results, though, contradictory, so decisive, the question 
becomes of great importance. Which of the two elections was 
authorized by law and which was not ? This question evidently 
depends, as a legal one, on the power of a legislature, or the 
successor of a legislature, by which a Convention has been 
called, to alter a regulation made by the latter in relation to the 
time and manner of submitting a Constitution to the people. 
And this again depends upon the question whether the making 
of regulations touching the submission of Constitutions to the 
people is an exercise of ordinary or of fundamental legislation. 
If it be the former, it belongs exclusively to the legislature, 



384 CAN THE LEGISLATURE BIND THE CONVENTION? 

whether that body claims it or yields it to the Convention. And, 
if the right to submit belongs exclusively to the legislature, any 
Act of a Convention having for its purpose such submission 
would be wholly invalid, unless ratified by such legislature, or 
by the acquiescence of the people. From this it follows, that if 
the legislature were to dissent from the dispositions made by a 
Convention and to make new ones, the latter would in effect 
be rather original Acts than alterations of Acts previously 
passed ; that is, in them alone would there at any time be any 
validity whatever. As a matter of fact, we shall see hereafter, 
that, by thoughtless legislation. Conventions have been some- 
times empowered to make such provisions as they may deem 
advisable respecting the submission of the fruit of their labors 
to the people, and perhaps no great evil has as yet practically 
resulted from so doing. But, as a precedent, in my view, noth- 
ing could be more dangerous. To demonstrate this, it is neces- 
sary only to advert to a single circumstance, which is, that 
whenever the providing for submission to the people is remitted 
to a Convention, the power is given to that body absolutely. 
There is no such thing as taking the sense of the people on the 
propriety of any provisions the Convention may make, for they 
are to take effect prior to, or at latest, contemporaneously with, 
the popular vote, with the single exception of such as relate 
to the returning and counting of the votes. The result is, that 
a body whose function is, and can safely be, at most, only that of 
a committee, is vested with an absolute discretion in a point 
of infinite importance to the public welfare. This would be 
eminently unsafe, were the trust confined to ordinary legislation ; 
but it is not. It has a decisive influence upon the passing or 
not passing of the fundamental law, and may even determine 
its character. 

§ 417. The principal reasons why such legislation as is neces- 
sary to submit to the people the fruits of the deliberations of a 
Convention, should be performed by the legislature, are, first, 
that that legislation is not fundamental in its character ; and, 
secondly, that a legislature, and no other body, is, under our 
Constitutions, competent to perform that work, and that the leg- 
islature has no constitutional authority to delegate the right to 
perform it to any other body. 

The principles upon which the first of these propositions rests 



CAN THE LEGISLATURE BIND THE CONVENTION? 385 

have been the subject of extended examination in a former 
chapter, in which was considered the distinction between the 
two kinds of legislation specified.^' It needs therefore only to 
be remarked here, that in an Act having for its purpose the sub- 
mission of fundamental laws to the people, there is nothing 
whatever of a fundamental character. It is a simple exercise 
of ordinary legislation — an adapting of means to an end — 
depending for its particular character upon current views of ex- 
pediency. Hence it is worthy of note, that such Acts, even when 
passed in the shape of ordinances by Conventions, are generally 
not accounted parts of the Constitution. At most, they are 
allowed to figure in the Schedule, which, as we have seen, is the 
repository of provisions intended to facilitate the transition from 
an order of things going out with an old, to that coming in with 
a new, Constitution. Hence, such Acts, being temporary in 
purpose and effect, are not really proper to rank as constitutional 
provisions, though perhaps they may be as binding upon the 
various departments of the government as if they had been 
embodied in the Constitution. 

§ 418. In relation to the second proposition, it is so purely a 
legal one, and is so well settled, that there is even less need of 
dwelling upon it at length. No position is better established in 
American law than that ordinary legislation belongs exclusively 
to the legislature proper, and cannot be delegated even to the 
people or electors, who are in one §ense superior to both legisla- 
tures and Conventions. Thus, the Supreme Court of Delaware, 
in a case where the question arose as to the constitutionality of 
an Act of the legislature entitled, " An Act authorizing the 
people to decide by ballot whether the license to retail intoxi- 
cating liquors shall be permitted among them," upon that ques- 
tion, said: — 

" It is ... . clear that neither the legislative, executive, nor 
judicial departments, separately nor all combined, can devolve 
on the people the exercise of any part of the sovereign power 
with which each is invested. The assumption of a power to 

do so would be usurpation The powers of government 

are trusts of the highest importance ; on the faithful and proper 
exercise of which depend the welfare and happiness of society. 

1 See ante, §§ 85-87. 

2 Stewart v. Crosby, 15 Texas R. 546. 

25 



386 CAN THE LEGISLATURE BIND THE CONVENTION? 

These trusts must be exercised in strict conformity with the 
spirit and intention of the Constitution, by those with whom 
they are deposited ; and in no case whatever can they be trans- 
ferred or delegated to any other body or persons ; not even to 
the whole people of the State ; still less to the people of a 

county If the legislative functions can be transferred 

or delegated to the people, so can the executive or judicial 
power. The absurd spectacle of a governor referring it to a 
popular vote, whether a criminal, convicted of a capital offence, 
should be pardoned or executed, would be the subject of uni- 
versal ridicule; and were a court of justice, instead of deciding 
a case themselves, to direct the prothonotary to enter judgment 
for the plaintiff or defendant, according to the popular vote of 
a county, the community would be disgusted with the folly, 
injustice, and iniquity of the proceeding. All will admit that, 
in such cases, the people are totally incompetent to decide cor- 
rectly. Equally incompetent are they to exercise with discern- 
ment and discretion collectively, or by means of the ballot-box, 
the power of legislation ; because, under such circumstances, 
passion and prejudice incapacitate them for deliberation." ^ 

K weight is to be given to this and numerous other decisions 
of our courts, according with it in principle, it is clear then that 
the function, often assumed by Conventions, of submitting to 
the people the results of their deliberations more properly be- 
longs to the legislature, the latter being the only body which 
can constitutionally make the requisite legislative provisions. 

§ 419. (b). In the preceding sections have been considered 
the general relations of legislatures to Conventions, and the 
power of the former, by their enactments, to bind the latter, 
concluding with a discussion of some questions involving an 
application of the principles which determine those relations 
and limit that power. Another and not less important aspect 
of the same relations remains to be considered, namely, that in 
which the Convention is regarded as the active body, exercising 
powers, or assuming functions ; while the legislature, to which 

1 Rice V. Foster, 4 Harr. (Del.) R. 479. See also the following cases, in 
which the same rule is maintained: Bradley v. Baxter, 15 Barb. R. 122 ; Peo- 
ple V. Collins, 3 Mich. R. 343 ; Case of the Borough of West Philadelphia, 5 W. 
& S. R. 281 ; Barto v. Himrod, 4 Seld. R. 483 ; Maize v. The State, 4 Porter's 
(Ind.) R. 342 ; Parker v. Commonwealth, 6 Barr's R. 509. 



HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 387 

that action is conceived to be relative, is passive, or out of 
sight. 

Under this phase of the subject various questions arise, but 
they all resolve themselves substantially into the follou'ing, 
which I purpose, therefore, to discuss at some length, namely — 

1. Is a Convention possessed of legislative powers ? 

2. Can a Convention act as a legislature in matters by the 
Federal Constitution required to be transacted by the legisla- 
tures of the several States ? 

3. Can a Convention fetter a discretion confided to the State 
legislatures by the Federal Constitution ? 

§ 420. 1. We have seen that, in the United States, the con- 
stitutional Convention belongs to the genus legislature, — by 
which is meant that its proper function is to elaborate, to a 
certain extent, to be determined by the tenor of its commission, 
the fundamental law, much as the legislature enacts the ordi- 
nary municipal law. Of these two species of law, the distinc- 
tion between which has been already explained, it is the im- 
portant thing to note, that the one denominated fundamental is, 
generally speaking, the work only of a Convention, a special 
and extraordinary assembly, convening at no regularly recurring 
periods, but whenever the harvest of constitutional reforms has 
become ripe ; while, on the other hand, the ordinary statute law, 
whose provisions are tentatory and transient, is, regularly at 
least, the work of a legislature, — a body meeting periodically at 
short intervals of time. It is thoroughly settled that, under our 
Constitutions, State and Federal, a legislature cannot exercise 
the functions of a Convention, — cannot, in other words, take 
upon itself the duty of framing, amending, or suspending the 
operation of the fundamental law.^ Being the supreme law of 
the land, all departments of the government are subject to its con- 
trol, for from and under it they derive both their commissions 
and their existence ; and to permit either of them to modify it 
would be to invert the relations of dependence on which the 
safety of the whole system depends. This has never been 
doubted since the early days of the Republic.^ Does an anal- 

1 The same also is true of the legislatures of all constitutional governments, 
excepting, perhaps, that of England. Vattel, Law of Nations, Bk. I. ch. 3, 
§§34,35. 

2 It is true, some confusion existed on this subject in some of the States, under 



388 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 

ogous rule prevail in relation to the Convention, the framer of 
the fundamental law ? Or may it, by virtue of some transcend- 
ent power inherent in it, or of well-established custom or pre- 
cedent, overleap all bounds interposed to limit its competence, 
and take upon itself the function of legislation in general ? 

§ 421. This question will be examined upon both of the 
grounds indicated, in their order, namely, first, upon that of 
inherent power ; and, secondly, upon that of custom or prece- 
dent. 

First The reasoning of those who assert for the Convention 
a general power of legislation is, in its last analysis, that by 
which is vindicated the doctrine of conventional sovereignty, 
of which, in its general form, a refutation has already been at- 
tempted.i The particular argument in this connection is, that 
the business of a Convention is extraordinary, beyond the com- 
petence of either of the recognized ordinary agencies of the sov- 
ereign ; that that body receives its commission from the same 
source as do those agencies, and, therefore, on the whole, is en- 
titled to outrank them all ; that, although as a prudent precau- 
tion against dissatisfaction or cayil, it is doubtless better for a 
Convention to forego the exercise of extreme rights and to sub- 
mit its work to the judgment of the people, yet, that it is not true 
that it lacks power directly and definitively to enact the supreme 
law of the land ; that if this be conceded, it needs only to ana- 
lyze the general power thus described into its constituents to 
find the power in question ; that the fundamental conception of 
the business of a Convention is, that it takes to pieces, or, as it 
is sometimes expressed, " tramples under its feet," the existing 
Constitution of a State, and out of the old materials, or out of 
old and new together, erects a structure to fill its place ; that 
with the Constitution falls, of course, the government of the 
State ; that, starting thus, potentially, at least, according to its 
own will, with a clean slate, to deny to the body possessing 
such omnipotence the power of legislation, would be to deny 
that the greater includes the less ; that, if it can enact the funda- 
mental law^, why not also the ordinary statute law, of which the 

their first Constitutions ; but the question of the power of their legislatures was 
soon settled by the courts, as above indicated. See Kamper v. Hawkins, 1 Va. 
Crim. Cas. 20. 
1 See ante, §§ 315-319. 



HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 389 

nature, it is true, is somewhat dissimilar, but whose importance 
is vastly inferior ? that a Convention is competent, by constitu- 
tional provision, to abolish all existing agencies of government, 
and to fill their places with others, constructed on different prin- 
ciples ; is it then conceivable, it is asked, that it cannot do di- 
rectly what it can do indirectly, or that the right to exercise so 
exalted a prerogative is conditioned upon its exercise in a par- 
ticular mode? that as a matter of fact, the Convention, through 
its relations to the several departments of the government, as in 
turn their destroyer and their creator, can exercise at will the 
functions of each of them ; that being " a virtual assemblage of 
the people," it wields all the powers which the people themselves 
would possess were it, in the nature of things, possible for them 
to act. directly ; hence, that, within the bounds fixed by its own 
discretion, a Convention may make laws, or may interpret or 
execute them. | 

§ 422. To this argument, the following considerations con- . / 
stitute, in my judgment, a complete answer : — / 

If " the safety of the people is the supreme law," — of which 
there is no doubt, and which I affirm, — the maxim involves both 
a grant of power and a limitation of power. It is a grant of 
power, inasmuch as it authorizes and requires all public func- 
tionaries to protect and defend the people at whatever cost ; to 
do it, however, by adhering, first, to the letter, and secondly, to 
the spirit of their instructions, that is, of the Constitution and 
laws ; and, thirdly, to the principles on which the social edifice 
is bottomed. When the letter of the law is silent, or its spirit 
doubtful, the principles indicated are the only chart by which 
official conduct can be regulated, and are the first in validity 
and sacredness, since they are the sum of the letter and spirit 
of positive law, as well as of that unwritten law which presided 
at the genesis of the social state anterior to all positive law. 
Hence, it is plainly the duty of such functionaries always to 
conform to those principles, since a disregard of them involves, 
in substance, a violation of the letter and spirit of the positive 
law, and, at length, the ruin of the Commonwealth. Do what 
necessity requires, and ask for indemnity for technical breaches 
of law, is the rule of practical conduct dictated by the maxim 
under consideration.^ 

1 See Rice v. Foster, 4 Harrington's R. 479 (485). 



390 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 

As a limitation of power, the same maxim is of extensive 
application. In cases of doubtful construction of constitutional 
provisions, or in which there are no express provisions determin- 
ing grants of power, it is the most important touchstone in our 
whole system. Starting with the postulate of representative 
republican institutions, the two following propositions must be 
accepted, — first, that whatever manifestly endangers the safety 
of those institutions must be forborne, though authorized by 
an express grant of power ; and, secondly, that no act whatever 
must be done or tolerated, in the absence of such a grant, of 
which the tendency, or, still more, the direct effect would be to 
endanger them. In the case last supposed, no power to do 
the act could be implied, under any circumstances whatever, 
no matter how clearly it might seem, for the time, to be expe- 
dient.^ 

§ 423. Now, in the light of these principles, is the exercise by 
a Convention of legislative, or other governmental powers, in 
addition to those clearly belonging to it, to be considered as 
within its competence, as a constitutional body ? Is such an 
assumption of power one which threatens no danger to the Com- 
monwealth ? By the theory of those who accord to it such 
powers, as soon as the Convention is assembled, the control of 
the existing government over it is at an end ; the Constitution 
lies torn into fragments under its feet ; and while the work of 
its instauration is in progress, that body alone constitutes the 
state, gathering into its single hands the reins ordinarily held 
by the four great systems of agencies constituting the govern^ 
ment, to whose functions it succeeds. If this be so, what, but 
its own sense of justice, is to restrain such a body from running 
riot as did the Thirty Tyrants at Athens ? The jurists of the 
Illinois Convention of 1862, as we have seen, affirmed, that the 
Act under which such a body assembles, is no longer binding, 
when once it has become organized. If, at that moment, it has 
also cast upon it, by virtue of its great commission, all govern- 
mental powers, how easy to extend the scope and the period of 
the exercise of those powers, under the plea that expediency 
demands it. The expedient is the appropriate domain of a legis- 
lature. K, at the moment of organizing, a Convention is en- 
dowed with legislative powers, it may be deemed expedient to 
1 B,ice V. Foster, ubi supra. 



HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 391 

subvert the system of guarantees by which our liberties are 
assured to us, and at the same time to withhold from the popu- 
lar vote the constitutional provisions by which the change is to 
be effected. Such a consummation would be not merely possi- 
ble ; it would be probable. And, clearly, the possibility of its 
occumng with an appearance of rightfulness, is enough to stamp 
as dangerous that theory of conventional powers from which it 
must flow. In the science of politics, it is an important point 
gained to have settled the limit where normal action under the 
Constitution ends, and revolution begins. To have done that 
is practically, in most cases, to have rendered revolution impos- 
sible. 

The result is, that a Convention cannot assume legislative 
powers. The safety of the people, which is the supreme law, 
forbids it. Even, if we suppose the body expressly empowered 
by the legislature to exercise such powers, the right so to do 
must be denied, because the same supreme law places an abso- 
lute interdict on such a grant ; it is beyond the power of a legis- 
lature to delegate any such authority. 

§ 424. To these general considerations, tending to discredit 
the claim of Conventions to legislative powers, must be added 
the decisive circumstance, that our Constitutions, as well State 
as Federal, have vested all the power of ordinary legislation the 
people have chosen to grant at all, in our legislatures. The 
construction put upon these provisions of our Constitutions by 
the courts, is, that the grant is exclusive, and that the power can 
neither be delegated by the legislatures, nor exercised by the 
people, not even by the whole people.^ It is doubtless true, that 
neither in the cases establishing the construction referred to, nor 
in our Constitutions, is there any reference to the exercise of 
legislative power by Conventions ; but neither is there any men- 
tion of its exercise by the people. The conclusion that the 
general grant of legislative power to our legislatures, is implicitly 
an interdict upon the exercise of that power by the people, is 
derived mainly from the same general considerations relating to 
the safety of the Commonwealth, above specified, and of course 
tends to justify an extension of the interdict to all other bodies 
with respect to which the same reasons apply. 

§ 425. Were additional arguments needed to demonstrate 
1 For the cases establishing this construction, see ante, § 418, note. 



392 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 

that a Convention has no power of ordinary legislation, refer- 
ence might be made to the fact, that the possession of such a 
power would be extremely inconvenient, on account of the ne- 
cessarily temporary and experimental character of such legisla- 
tion, on the one hand, and the difficulty of effecting changes in 
the enactments of Conventions, on the other. Every Ordinance, 
or constitutional provisiouj passed by a Convention, assumes a 
form nearly as rigid as that of the Medan laws ; they can be 
repealed only in the formal way in which they were enacted. 
It would be impossible to administer with success any govern- 
ment so crippled in its legislative arm. The result would inev- 
itably be, that laws would be constantly disregarded, or that 
Conventions would become so necessary and frequent that they 
would ultimately supplant our legislatures. 

§ 426. Secondly. In relation to custom and precedent — it 
is not denied by those who attribute to Conventions a general 
power of legislation, that that view receives little countenance 
from the practice of those bodies, in former times. But the lack 
of precedents is explained away by the consideration, that the 
actual exercise of such a power would naturally be infrequent 
and exceptional, as it would ordinarily occur only when great 
crises demanded instant legislative remedies, the legislature itself 
being either not in session, or controlled by treasonable influ- 
ences. Moreover, it is plausibly argued, that the fact that a 
power is usually, because, perhaps, more conveniently, exercised 
by one of two bodies, is no reason for denying the existence of 
it in the other. To hold thus, it is said, would be to maintain, 
that the inherent rights of an assembly, which preeminently 
represents the sovereign, are forfeited by non-user; rights, of 
which the exercise, on account as well of the extraordinary char- 
acter of the body possessing them, as of the conditions under 
which only they are likely to be asserted, must be occasional. 
Still, however infrequent, it is claimed that precedents exist, and 
there are pointed out to us three classes of cases, in which Con- 
ventions have, it is said, exercised the general power of legisla- 
tion. These are — first, the cases of the Conventions which framed 
the first Constitutions of some of the States, during the Revo- 
lution, upon the exceptional and irregular character of w^hich 
comment has already been made ; secondly, cases in which Con- 
ventions have undertaken, in non-revolutionary times, by ordi- 



HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 393 

nance, to regulate matters of ordinary administration, or to do 
other acts manifestly legislative in character ; and, thirdly, cases 
in which Conventions have inserted in Constitutions provisions 
partaking rather of a legislative than fundamental character, as 
relating largely to matters of detail. 

§ 427. In relation to these classes of cases, I observe that they 
are none of them deemed of much weight as precedents. 

1. It is true, that many of the earliest Conventions, even 
where called expressly to frame and establish Constitutions, were 
also charged with, or assumed, other functions, to wit, those 
of provisional governments. Accordingly, the journals of those 
bodies are filled about equally with their proceedings in discharge 
of governmental functions, and of their special office as Consti- 
tutional Conventions — propositions to be embodied in their 
Bills of Rights, or Constitutions, for instance, being mixed up 
with measures relating to the internal police, to the raising of 
troops or of revenue, or to the punishment of their Tory oppo- 
nents. Obviously, cases like these, arising in revolutionary 
times, cannot properly be cited as precedents for the conduct 
of sitnilar bodies in times of peace and constitutional order. 
But when it is considered, that the moment the Conventions 
referred to overstepped the limits which bounded their jurisdic- 
tion and entered upon the domain of actual administration, that 
is, of government, they became bodies of a wholly different char- 
acter, to wit. Revolutionary Conventions,^ it is clear, that the 
alleged precedents are of no value whatever. 

§ 428. As to the second class of cases, in which a few Con- 
ventions have, by ordinance, legislated outside of their special 
province, their value as precedents is of less account, because 
they have been of infrequent occurrence, and the subjects of 
that legislation have been commonly trivial. A Convention 
being in session, and the progress of business developing a 
necessity for further legislation, to avoid the delay and expense 
attending the regular course of proceeding in the legislature, 
that body has sometimes ordained the regulations required, and 
the government and people have acquiesced. Here, it may be, 
that it was not thought expedient to insist too rigidly upon pre- 
cise conformity to principles in matters of small concern ; and, 
perhaps, in the infancy of our institutions (for they are yet in 
1 See ante, §§ 7-10. 



394 HAS THE CONVENTION GENERAL LEGISLATIVE POWEES ? 

the gristle) it has not always been seen that a Convention is so 
radically distinct from a legislature as it unquestionably is. 
Considering the ignorance still prevalent, even among educated 
men, respecting the theory of Conventions, it is not strange that 
it should be thought competent for them to do what history 
shows the Conventions of the revolutionary period certainly did. 
And, in truth, the only way of breaking the force of those cases 
as precedents, is to deny the normal and constitutional character 
of the latter Conventions, which, as we have seen, may very 
justly be done. The Conventions of our Revolution were, in 
many of the States, the governments of those States. If they 
legislated, they did so in this their exceptional character. If the 
Conventions of our day can also legislate, and if the evidence 
that they can do so is derived from the practice of those early 
Conventions, they must, also, potentially, at least, be the gov- 
ernments of their respective States — which is the doctrine of 
conventional sovereignty. 

§ 429. So, in the third class of cases, where the jurisdictions 
of legislatures and Conventions clash, because, having a com- 
mon frontier, cases arise in which it is doubtful to which body 
they belong, it is unfair to make an assertion of jurisdiction by 
either a binding precedent as to the right. A Convention is 
authorized to embody in the Constitution general provisions 
establishing principles, but leaving details dependent on consid- 
erations of temporary expediency to be determined by the legis- 
lature. Thus, take the provision relating to Homestead Exemp- 
tion, as it is called ; a Convention is competent to recommend 
the adoption of the principle, in such a form and under such 
conditions, as is consonant with the general conception of fun- 
damental legislation, and no further. It may indicate what has 
become the settled policy of the State, but, if it go beyond that, 
developing principles into minute provisions, likely, as circum- 
stances shift, to need modification, it trespasses upon the domain 
of the legislature. Doubtless, a Constitution, stuffed with legis- 
lative details, may acquire legitimacy, by its being ratified by 
the people ; for, where a Constitution contains a positive pro- 
vision, the courts cannot ignore it, or annul it ; but the impro- 
priety of such legislation would not thereby be disproved or 
lessened. If legislative provisions are thrust into a Constitu- 
tion and passed upon by the people, ought they to have the 



HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 395 

force of laws any more than when submitted to the people dis- 
connected from provisions truly fundamental ? In the latter 
case, we have seen, that our courts pronounce them wholly 
without validity as laws. If the same judgment be not given 
respecting a constitutional provision consisting of legislative 
details, it is simply because it would be in effect to permit our 
judiciary to annul the charters under which they act, under the 
pretext of striking from them provisions not properly funda- 
mental. 

§ 430. With these remarks upon the general question of the 
power of Conventions to legislate, I pass to a consideration 
of certain practical questions which have arisen, involving an 
application of the principles I have developed. 

(a). The first of these which I shall mention, arose in the Illi- 
nois Convention of 1862, under the following state of facts. 
About a year before the Convention assembled, the legislature 
of Illinois had passed three Acts relating to the city of Chicago, 
or to the townships over which it extended, which were obnox- 
ious to a portion of its citizens, and particularly an Act, approved 
February 21, 1861, entitled " An Act to establish a Board of 
Police in and for the City of Chicago, and to prescribe their 
Powers and Duties," the force and effect of which was to turn 
out of office the old city police, and to vest the police powers of 
the city in a board of commissioners elected by the voters of the 
county in which the city was situated. The two other Acts 
related to matters entirely foreign firom the mode of electing or 
appointing city officers. The Convention met in January, 1862, 
and toward the end of its session, March 21, adopted an Ordi- 
nance providing for an election to be held in the city of Chicago 
on the third Tuesday of April following, at which the legal voters 
of said city were to cast ballots on which should be printed or 
written the words, " For the city of Chicago electing its own 
officers," or the words, " Against the city of Chicago electing 
its own officers." The Ordinance then went on to provide, 
that, in case a majority of the electors voting at said election 
should be in favor of said city electing its own officers, then 
it should not be lawful for any officers of that city to be chosen 
in any other manner than by a vote of the people of said city, 
or appointed in any other manner than by the mayor and al- 
dermen, as provided by present laws, and that the three Acts 



396 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 

referred to should be, and the same were, each and all of them, 
thereby repealed. 

§ 431. After the adjournment of the Convention, on the third 
Tuesday of April, 1862, the electors of the city of Chicago, as 
required by this Ordinance, voted on the question of electing 
their own officers, and, as was, of course, foreseen by its framers, 
voted affirmatively. So far, admitting the propriety of the ac- 
tion of the Convention, the obnoxious Acts Of the legislature 
would seem to have been repealed. But other facts still further 
complicate the case. The Act of Assembly calling the Conven- 
tion had required that body to submit to a vote of the people 
the alterations or amendments proposed by it, and had declared, 
that said alterations or amendments should not take effect " un- 
less adopted by a majority of the legal voters voting at such 
elections." Accordingly, the Constitution framed by the Conven- 
tion, including, as a part of its Schedule, the Ordinance above 
described, in totidem verbis, was, by the Convention, submitted 
to a vote of the people of the whole State, at an election held 
on the 17th day of June, 1862, at which election the entire 
instrument, save a few provisions not involved in this discus- 
sion, which were separately submitted, was rejected by a deci- 
sive vote. An important circumstance, to be noted, to aid in de- 
termining the effect of these various proceedings is, that imme- 
diately succeeding the Ordinance, as embodied in the Schedule, 
was the following clause, viz. : — " The provisions of this Con- 
stitution, required to be executed prior to the adoption or rejec- 
tion thereof, shall take effect and be in force immediately." 

§ 432. Upon these facts embarrassing questions arose : When 
the people of Chicago had voted in favor of electing their own 
officers, were or were not the three legislative Acts referred to 
in the Ordinance, thereby repealed ? Was there any police sys- 
tem in force in that city, and if so, which was it, the city police 
or the county police ? If by the action of the Convention, or 
of the Chicago electors, or of both combined, the repeal of the 
obnoxious laws was effected, what influence upon them had the 
subsequent vote of the whole people of the State, rejecting the 
Constitution, Ordinance and all, with the exceptions indicated ? 
Did not the additional clause, giving immediate eflfect to such 
provisions of the Constitution as were required to be executed 
prior to the adoption or rejection thereof, save the Ordinance 



HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 397 

from the fate reserved for the rest of the instrument, especially 
as that Ordinance had been passed upon and adopted by that 
part of the people of the State who were to be affected by it ? 

To settle these questions, an application was made to the 
Supreme Court of the State for a mandamus to compel the 
board of police commissioners, appointed under the Act of 1861, 
to vacate their offices and to give place to commissioners to be 
elected by the legal voters of the city in pursuance of the Ordi- 
nance. The case was very ably and elaborately argued, and a 
decision was finally rendered denying the writ, upon the ground, 
as is understood, — for no opinion was ever filed by the court, — 
that by the vote of the people rejecting that instrument, the 
entire Constitution and Schedule were swept away and became 
of no force or effect for any purpose. At all events, the Acts, 
sought to be repealed by the Convention, were continued in 
force until repealed by the legislature, and hence the decision of 
the court involved practically the following conclusion, that the 
Convention was not competent, even with the cooperation of that | 
part of the people to be affected by it, to repeal an Act of the 
legislature, local in its scope and operation.^ 

§ 433. A brief abstract of the arguments of counsel in this 
case, relative to the power of the Convention to repeal laws, 
may be of interest. 

On the part of the relator it was contended, that about the 
intention of the Convention in passing the Ordinance of March 
21st, and hence relative to the extent of power which that body 
meant to assert, there could be no doubt ; it certainly claimed 
the right to legislate ; the only question was, Had it that right ? 
That in relation to that question, it was clear, that it was com- 
petent for that body to prohibit the appointment thereafter of 
any person to any office for the city of Chicago by the Governor 
or General Assembly ; that, at least, the power of the Conven- 
tion to deliberate and act upon such a question, had not been 
disputed, and it would be difficult to show, that it could not so 
far change or abrogate existing statutes as to make the legisla- 
tion of the State conform to the supposed new order of things ; 
that the repealed Acts were in palpable conflict with the prin- 

1 People of the State of Illinois, ex rel. The City of Chicago v. A. C. Co- 
ventry et al, April Term, 1862, of the Supreme Court of Illinois. Case not 
reported. 



398 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 

ciple of the new provision about to be adopted by the Conven- 
tion as a part of the fundamental law, and therefore the Ordi- 
nance declared, that " the powers and duties of all officers 
appointed under and by virtue of said Acts, shall immediately 
cease ; " that so far as respected the legislating of those officers 
out of office, the power to do that had been frequently exercised, 
as in the Illinois Constitution of 1848, and had never been ques- 
tioned ; that the effect of every new Constitution was to annul 
all existing statutes in conflict with its provisions, and if any 
statutes were continued in force, they were, strictly speaking, 
reenactments by that Convention, to which alone we must look 
as the source of their validity ; ^ that if that body could thus 
reenact statutes, or continue them in force for a prescribed period 
only, it was idle to deny to it the right in express terras to repeal 
them ; that, if it was admitted that the Convention possessed 
legislative functions for any purpose, no limit could be assigned 
to its exercise of them ; that the extent of its power to legislate 
must be subject only to its own discretion, which no other tribu- 
nal, legislative or judicial, had power to review ; that the busi- 
ness of a Convention was to make a Constitution — to ordain 
organic laws. But what were organic laws ? Who was to de- 
cide ? The answer was plain and free from difficulty ; the Con- 
vention had the sole power of determining what should be the 
organic law, and whatever it prescribed (subject, in some cases, 
to the ratification of the people) became a part of the Constitu- 
tion ; that the courts could not control or annul its decision, 
except in the single case where enactments were repugnant to 
the Federal Constitution ; that, with that exception, no provision 
inserted in the organic law could be annulled by any power 
on earth save by the people acting in their highest sovereign 
capacity. 

§ 434. For the respondents, it was contended, that the Conven- 
tion, in passing the Ordinance in question, had set at defiance 
the provisions of the Act of the legislature under which the 
delegates to it had been elected, and had assumed to be vested 
with the supreme authority of the people of Illinois ; that the 
supreme authority of a community includes executive and judi- 
cial as well as legislative powers, all of which it might with 
equal justice claim a right to exercise without control, if it were 
1 Woods V. Blanchard, 19 111. K. 40. 



CAN CONVENTIONS APPROPRIATE MONEY? 399 

really the sovereign body it pretended to be ; that the claim of 
powers so extensive was discredited by the best writers on gov- 
ernment, and by the examples of the fathers throughout our 
entire history, all of whom had united in the sentiment forcibly 
expressed by the authors of the " Federalist," " that the accumu- 
lation of all powers, legislative, executive, and judiciary, in the 
same hands, whether of one, a few, or many, and whether 
hereditary, self-appointed, or elective, may be justly pronounced 
the very definition of tyranny ; " that, clothed with such powers, 
the Convention was subject to no Constitution or law, and 
might have perpetuated its own existence and powers, and the 
people could have escaped from its tyranny only by a revo- 
lution resulting in a dethronement of the usurpers of their 
power; that the principles of our government led to no such 
disastrous results ; but that those results were, on the contrary, 
the fruits of a perversion of those principles ; that the funda- 
mental idea of our system of governments was, that the sover- 
eignty resided in the people, who, for its practical exercise, con- 
fided it, or so much of it as they deemed desirable, to separate 
agencies ; that all acts of either of those agencies, within the 
sphere of its powers, were acts of the people ; that in general 
the powers granted to each of those agencies or departments 
were exclusively its own, liable to be resumed by the people, 
but, so long as vested in the several departments, not to be 
rightfully exercised even by the people themselves ; that from 
these principles it followed, not only that the people might and 
did limit the powers delegated to their representatives, but that 
they equally might and did limit their own powers ; and, conse- 
quently, even if the Convention wielded all the powers of the 
people, it could not perform an act of ordinary legislation, be- 
cause the people had by the Constitution granted the power of 
legislation to the General Assembly, and had thereby limited 
their own power in that behalf.^ 

§ 435. (b). The next practical question to which I shall ad- 
vert, is one of intrinsically so much moment, and of such fre- 
quent occurrence, that I shall devote to it considerable space, 

1 The argument, so far as it proceeded upon the ground that the people could 
limit themselves by the Constitution, was mainly that of Mr. Webster before 
the United States Supreme Court, in the case of Luther v. Borden, 7 How. R. 
1. For the full argument, see Webster's Works, Vol. VI. p. 221, et seq. 



400 CAN CONVENTIONS APPROPEIATE MONEY ? 

namely : Have Conventions power to appropriate money ? The 
power to appropriate money, when asserted at all, has been uni- 
formly claimed upon the ground that a Convention is possessed, 
subject only to the Federal Constitution, of sovereign powers, 
and consequently, as involved in that grant, of all special ad- 
ministrative or governmental powers, legislative, executive, and 
judicial. On the other hand, legislative power has been gener- 
ally denied to it on the ground that the Convention is not in 
any sense sovereign ; that it is even, in the extent of its powers, 
inferior to the legislature, by which Acts may be definitively 
passed, while our Conventions are invested, save in exceptional 
cases, with a recommendatory power only, — being, in truth, but 
mere committees charged with a certain legislative function, but 
not with that of legislation in general, much less with those of 
the executive or judicial departments. To this are commonly 
added considerations of the danger of intrusting the public 
purse to an assembly consisting of a single chamber, and of 
the improbability, therefore, that the founders of a system so 
guarded and balanced as ours, would have left it in the control 
of such a body, without a single check against usurpation. I 
shall, therefore, only give a short statement of some cases in 
which the question has arisen, or the power been exercised, and 
of the decisions and results thereof, so far as known. 

§ 436. Resolutions or ordinances have been passed by Con- 
ventions, appropriating the public moneys, for the following 
purposes : — 

1. To pay the salaries of the officers or members, and to de- 
fray the incidental expenses of those bodies. 

2. For benevolent, charitable, or other purposes, outside the 
scope of their special duties or business, as Conventions. 

1. The precedents in the earliest Conventions, excepting those 
which clearly acted as provisional governments, are not in favor 
of the power in question. Thus, in that of Massachusetts, of 
1779-80, a committee was appointed "to apply to the General 
Court for the payment of the members of this Convention, to 
be made out of the treasury of the State," and also " for pay- 
ment of such charges as have arisen, or may arise, in prosecut- 
ing the business of this Convention." The action of the Fed- 
eral Convention of 1787 was similar. Instead of assuming the 
power to determine their own salaries and to vote money to pay 



CAN CONVENTIONS APPROPRIATE MONEY? 401 

them, the whole subject was referred to Congress. On the 5th 
of September, it was " Resolved^ That the United States in 
Congress be requested to allow and cause to be paid to the 
secretary and other officers of this Convention such sums in 
proportion to their respective times of service as are allowed to 
the secretary and similar officers in Congress." This resolution 
was followed by an order directing the secretary of the Con- 
vention to make out and transmit to the treasury office of the 
United States an account for the said services and for the inci- 
dental expenses of the Convention. The Act calling the Illi- 
nois Convention of 1847, authorized that body to elect a printer, 
and fixed his compensation at the rate received by the public 
printer from the General Assembly. A proposition was made 
in the Convention for a committee to receive proposals for doing 
the printing of that body, and directing that it be let to the low- 
est responsible bidder. This motion was resisted, on the ground 
of a want of power to vary the enabling Act ; that the proposi- 
tion to do so involved the right to appropriate the sums agreed 
to be paid, since they could not be claimed under the Act, if the 
latter were repudiated. The motion was for that reason laid 
upon the table. On a similar ground, a motion made in the 
New York Convention of 1846, to appoint stenographers, was 
negatived. 

§ 437. On the other hand, propositions of the kind specified 
have often been adopted and acted on by Conventions. Thus, 
the Pennsylvania Convention of 1837, in the course of each of 
its two sessions, passed a resolution appropriating money as a 
compensation to the clergymen who officiated therein, though 
not without vigorous protest on the ground of want of power. 
So, in the Louisiana Convention of 1844, a resolution was car- 
ried authorizing the State Treasurer to advance to its printer 
the sum of one thousand dollars, " for the subscription to the 
Reporter," a daily paper containing a report of its debates. The 
Convention of 1864 of the same State made similar appropri- 
ations, to a large amount, to be paid out of " the funds in the 
public treasury not otherwise appropriated," for extra services 
rendered by its officers. In the Indiana Convention of 1850, 
the question of its power to appropriate money arose on a mo- 
tion to elect a printer to the Convention. This motion was op- 
posed on the two grounds, — 1, that, under the laws of Indiana, 

26 



402 CAN CONVENTIONS APPROPEIATE MONEY ? 

there was a State printer, under bonds to do the public printing, 
who claimed, and was in law entitled, to do that of the Con- 
vention ; and, 2, that the Convention was not competent to 
appropriate money to pay a printer, should it elect one. After 
a long discussion, which turned mainly on the question whether 
the State printer, elected by the General Assembly, and under 
bonds " for the prompt, accurate, and workmanlike execution 
of the public printing, and the faithful performance of all the 
duties required of him by law," was ex officio printer to the 
Convention, it was determined that he was not, and that body 
proceeded to elect one to fill that office, without, however, mak- 
ing any provision for his payment. To this action a formal 
protest was made by a minority, and entered on its journal, 
affirming the right of the State printer to do the printing of the 
Convention, and denying the power of the latter to appropriate 
money to pay the printer elected by it. The Illinois Conven- 
tion of 1862, toward the end of its session, adopted a resolu- 
tion, almost unanimously, making appropriations to certain 
State officers for extra services in relation to the Convention. 
A doubt being expressed in regard to the power of the Conven- 
tion to make the appropriation, it was answered, that the legis- 
lature had appropriated money to defray the expenses of the 
Convention, and provided, that for the compensation of its offi- 
cers — the amount to be determined by the Convention — the 
president should issue his certificate to the auditor of public 
accounts, who should issue warrants for the sums mentioned 
therein, upon the State Treasurer. It is obvious, however, that 
this provision did not cover the case of extra or other compen- 
sation to State officers, who were specially directed by law to 
perform certain services for the Convention in their official 
capacity, but who were not mentioned in the Act as entitled 
to compensation. And of this opinion, evidently, was the State 
Auditor, for on presentation of the resolution of the Convention 
making the appropriation, that officer refused to issue his war- 
rant for payment of the money. By special Act, however, the 
General Assembly afterwards ordered compensation to be made 
to the officers named for the same services — the Act reciting 
as a reason for the appropriation the refusal of the State Au- 
ditor.i 

1 Act of January 28, 1863, Illinois Laws of 1863, pp. 11, 12. 



CAN CONVENTIONS APPROPRIATE MONET? 403 

§ 438. In regard to the above appropriations, it is to be noted 
that they were made under an assumption of power to do so 
inherent in those bodies, and without special authorization to 
that effect in the Acts calling them. But, were it true, that 
appropriations thus loosely made were honored by the State 
authorities, they would amount to but little, in my judgment, 
as settling the question of power. They have not, however, 
commonly thus been honored. It has been a usual consequence 
of the meeting of Conventions that our legislatures have fol- 
lowed it up with appropriations out of the treasury to meet 
what have been styled appropriations by those bodies. It is 
probable that, practically, those formal Ordinances disposing of 
the public funds have been regarded rather as recommendations 
than as mandates of an authority having the right to enforce its 
will. To bring the question to a test, it is only necessary to 
conceive a custodian of the public moneys receiving a warrant 
from a Convention — a body by whom he was not appointed 
and to whom he is not by law made responsible — directing him 
to turn over to the bearer the public funds in his hands. Is it 
possible that any officer, so situated, would feel authorized to 
obey such a warrant ? And, suppose he were to obey, would 
that warrant be pleadable in bar of an action on a Treasurer's 
bond to the State, if he should have failed on demand to turn 
over such funds to his successor, appointed in the manner laid 
down in the Constitution ? Yet, the power in a Convention 
to appropriate one dollar of the public money is a power to 
seize and to use as it may please the entire treasure of the State. 

§ 439. 2. In relation to the second class of cases, in which 
Conventions have assumed to make appropriations from the 
treasuries of their respective States, for general objects, foreign 
from the special purpose of those bodies, less need be said, as 
the arguments against the right are the same, and apply with 
increased force, whilst the instances in which it has been as- 
serted are fewer in number. In the absence of legislative pro- 
vision, it is doubtless often convenient, that Conventions should 
assume the power to appropriate, or, at least, go through the 
forms of appropriating, money, in the execution of their com- 
missions; and where the power is exercised only to facilitate 
the transaction of their proper business, it is, if unauthorized, 
obnoxious to less serious objection. But the case is different 



404 CAN CONVENTIONS APPROPEIATE MONEY? 

in relation to matters outside the business assigned to them. 
There, it seems clear, that, no matter what the circumstances 
might be under which the power should be exercised, it would 
be a power usurped. Accordingly, it will surprise no one, that in 
the better days of the republic, following the Revolutionary pe- 
riod ending with the adoption of the Federal Constitution, fev/ 
instances of such legislation have occurred, and those mainly 
within the last five years. Of these I shall mention but two. 

§ 440. The Illinois Convention of 1862, in a paroxysm of 
patriotic zeal, just after the capture of Fort Donelson, passed 
the following remarkable Ordinance : — 

" Be it ordained by the people of the State of Illinois, repre- 
sented and assembled in Constitutional Convention, — 

" That the sum of five hundred thousand dollars, or so much 
thereof as may be necessary, be, and the same is hereby, appro- 
priated out of the Treasury of the State of Illinois, for the 
exclusive purpose of relieving the wants and sufferings of the 
brave sons of Illinois, who have been or may be wounded in 
the battles fought by them and their brothers in the defence of 
the Union and the Constitution." 

Sections two and three authorized the issue by the governor, 
auditor, and treasurer of Illinois, of State bonds for that amount, 
and provided for the disbursement of the money by those ofl[i- 
cers jointly with a committee to be appointed by the Conven- 
tion. Praiseworthy as the object of this Ordinance was, the 
assumption in it of general powers of legislation was so glaring 
that some of the firmest friends of the soldier in the body were 
constrained to oppose its passage. They united in a protest, 
setting forth, that, in their opinion, the Convention had no power 
to authorize appropriations from the State Treasury, and that 
the assumption of such a power in so important a matter as the 
issue of State bonds, was an evidence of a loose administration 
of public affairs, and 'directly calculated to injure the credit of 
the State. The intention of those who passed the Ordinance 
was declared to be to issue the bonds immediately, but for some 
reason this was never done. What might have been attempted, 
had the Constitution framed by the Convention been adopted, 
cannot be known, but as that instrument was rejected, the bonds 
were never issued — and that was, perhaps, all that the friends 
of the Ordinance intended. 



CAN CONVENTIONS APPROPRIATE MONEY? 405 

§ 441. Another instance of this kind of legislation occurred in 
the Convention of 1864 for the reconstruction of Louisiana. 
An appropriation of twenty thousand dollars was made by it 
from the general fund, for the support and relief of charitable 
institutions, to be paid in the usual manner by warrants from 
the auditor or the treasurer, in favor of their respective man- 
agers. Afterwards a resolution was adopted, directing the 
payment out of the State treasury of the sum of ten thousand 
dollars for expenses incurred " in the formation of the free State 
of Louisiana." On the same day, upon the recommendation 
of the finance committee, it was resolved to draw from the gen- 
eral fund in the State treasury the amount necessary for the 
payment of members, employes, and contingent expenses until 
the end of the session ; also to pay to the State librarian, for 
services rendered by him in furnishing books and documents to 
the Convention, the sum of five hundred dollars. 

In reference to the precedents drawn from this last Conven- 
tion, it should be noted that they are of no weight at all by rea- 
son of the exceptional character of that body. That Convention, 
like those which followed it in the other States that attempted 
to secede from the Union, was, as we have already seen,i the 
creature of the military law, and so, in its inception, not to be 
ranked as legitimate. It was, besides, in essential character, a 
provisional government, and not a Constitutional Convention. 
In this exceptional character, it wielded whatever powers it 
chose to assert, subject only to the dictation of the military 
commander, being in fact the only civil government existing in 
the State. The legislature had perished along with the other 
departments of the government, in the act of seceding, so that, 
if there were funds in the State treasury, there was no civil 
authority, save the Convention, that could claim the right to 
disburse them. The analogy, therefore, was close between the 
Louisiana Convention and those of the American colonies, to 
which reference has been made, which, while they exercised 
some of the functions of Constitutional Conventions, were sim- 
ply Revolutionary Conventions, and, therefore, the former can 
properly furnish no precedents to bind such Conventions as are 
strictly constitutional bodies. 

Thus far of the power of Conventions to repeal Acts of the 
legislature, or themselves to enact ordinary laws. 
1 See ante, §§ 247-249. 



406 CAN A CONVENTION ACT AS A LEGISLATURE 

§ 442. 2. I pass now to the second class of questions pro- 
posed for discussion in this chapter, namely, Can a Convention 
act as a legislature in matters by the Federal Constitution re- 
quired to be transacted by the legislatures of the several States ? 

There are two cases : 

(a). Can a Convention assume, as a legislature, to prescribe 
the " times, places, and manner of holding elections for Senators 
and Representatives " in Congress ? 

{b). Can a Convention assume, as a legislature, to ratify pro- 
posed amendments to the Federal Constitution, when the rati- 
fication is required by Congress to be made by the State legis- 
latures ? 

{a). The fourth section of the first article of the Federal Con- 
stitution provides, that " the times, places, and manner of hold- 
ing elections for senators and representatives shall be prescribed 
in each State by the legislature thereof." 

In the Illinois Convention of 1862, a question arose in relation 
to the power of that body to personate the State legislature, 
under this section. Soon after the result of the census of 1860 
was announced, the legislature of Illinois had districted the 
State for thirteen members of Congress, on the basis of that an- 
nouncement, and had adjourned. In March, 1862, while the 
Convention was in session, an Act was passed by Congress al- 
lowing the State an additional representative. An election for 
members of Congress being about to take place in November 
of that year, it was deemed desirable, if possible, to correct the 
erroneous apportionment, without summoning together the legis- 
lature. Accordingly a resolution was introduced into the Con- 
vention instructing the judiciary committee to inquire whether 
that body had power to establish districts for the election of 
members of Congress. Upon that committee was placed the 
best legal talent in the Convention, and a report was promptly 
made, maintaining that the power of the Convention to estab- 
lish districts was undoubted. 

§ 443. The ground taken by the majority of the committee 
was simply that the true construction of the clause of the Con- 
stitution which requires that " the times, places, and manner of 
holding elections for members of Congress" should be prescribed 
by the legislature, was, that the people of the diiferent States 
should have the right to prescribe through their proper repre- 



TO DISTRICT THE STATE FOR MEMBERS OF CONGRESS ? 407 

sentatives, the particulars indicated ; that the ordinary construc- 
tion of the clause was founded upon the assumed technical 
signification of the word " legislature," according to which, the 
clause in question could only refer to the General Assembly ; 
that, on the contrary, the word " legislature," from its derivation, 
construction, and general use, was not confined in its meaning 
to limits so narrow, but denominated a body of persons having 
the power to lay down laws, — in common acceptation, to make 
laws ; that it was, therefore, properly applied to any body having 
and exerci"sing the power of making laws ; that the Congress of 
the Revolution was a legislature ; that the Convention which 
framed the Federal Constitution was the first legislature which 
ever convened and acted in America, having made and estab- 
lished, by the subsequent approval and ratification of the States, 
the supreme law of the land ; that in organizing new States out 
of Territories, the Conventions called for that purpose had exer- 
cised this power without question ; that the Convention of Illi- 
nois was a legislature, authorized to create laws which might 
abolish other legislatures ; change, annul, or reestablish existing 
laws ; in short, was superior in power, in the act of making laws, 
to any ordinary legislature, and hence might, at least, do, in the 
way of changing or abrogating the Acts of a former legislature, 
whatever a subsequent legislature might do. 

Upon the report of this committee, and almost without de- 
bate, the Convention instructed its committee on Congressional 
apportionment to redistrict the State at once for members of 
Congress. This was done, and there was consequently embod- 
ied in the Constitution a scheme of districts satisfactory to the 
majority of the Convention. 

§ 444. In relation to the arguments advanced by the commit- 
tee, it is worthy of note — 

1. That, although, as stated by the committee, the spirit of 
the clause of the Federal Constitution in question doubtless is, 
that the people of the several States should have the right to 
determine the time, place, and manner of electing their repre- 
sentatives in Congress, still it is explicitly required by that clause 
that the legislatures shall be the bodies by which that determina- 
tion shall be made. The real question is, what is meant by the 
term " legislature ? " The words " legislature " and " Conven- 
tion " are used in the Federal Constitution, the former ten times, 



408 CAN A CONVENTION ACT AS A LEGISLATURE 

and the latter four times. The signification intended by the 
word "Convention," it is impossible to mistake, since it is used 
only in reference to framing or ratifying a body of fundamental 
laws for the United States. The word " legislature " is always 
preceded by the article " the," as importing an institution well 
understood, and is uniformly coupled with the term " State." 
Moreover, from the context, it is impossible not to infer that the 
term is used technically, to designate the ordinary law-making 
power, and not a Convention, or other body. It may also be 
noted, that whenever reference is certainly made to the ordinary 
law-making power, the term " legislature " is employed ; and 
that whenever reference is certainly made to that body of per- 
sons whose duty it is to frame the fundamental law, the term 
" Convention " is employed, f 

§ 445. 2. The statement of the committee, that the Congress 
of the Revolution was a legislature, though true, is exceedingly 
unfortunate for their purpose. The Congress of the E-evolution 
constituted a provisional government, and as such was possessed 
of not only legislative, but executive and judicial powers ; it 
was precisely such a body as the Convention Parliament of 
1689 in England, composed of citizens collected irregularly, 
charged with the duty temporarily of protecting and governing 
the nation left without an organized government, and to that 
end authorized to exercise such powers as should seem to them 
to be necessary. A body of a similar character, so far as its 
legal status is concerned, was the National Convention of 
France; though, it must be admitted, that assembly, composed 
of men unpractised in public affairs, was, in point of political 
wisdom, infinitely inferior to both the Convention Parliament 
and the Continental Congress. But the point is, that they were 
all of them E-evolutionary Conventions, wielding provisionally 
all powers whatsoever. It is worse than idle to compare our 
Constitutional Conventions with such bodies. Constitutional 
Conventions are not governments at all ; they wield no adminis- 
trative powers, and of such as are denominated legislative pow- 
ers, they wield only such as relate to the organic law, and in 
respect to that, their powers are limited to recommendations 
merely. In other words, the Continental Congress, referred to 
by the committee, was not a Convention, in the sense intended 
by them, at all ; and, therefore, no inference as to the powers of 



TO DISTRICT THE STATE FOR MEMBERS OF CONGRESS? 409 

such a body can be drawn from the fact that that Congress did 
or did not possess particular powers. 

§ 44Qi^The committee say, that, in organizing new States out 
of Territories, the Conventions, called for that purpose, exercise, 
without question, the power of apportioning such States for 
members of Congress, and thence infer that all Conventiong.,^!.-^ 
may exercise the same powers. ' It is true, that, in many cases, [ 
such has been the practice. There being as yet no State, and, \ 
of course, no State legislature, unless the Convention could i 
make a temporary arrangement for the election of members of \ 
Congress, the new State must, after its admission into the I 
Union, be unrepresented in that body, until a State legislature I 
could be elected and could pass the necessary laws, — a condi- | 
tion involving often a considerable delay. In such cases, accord- f 
ingly, the custom has been for the Convention to anticipate the ;; 
action of the legislature, — a course which, on account of its ] 
obvious convenience, has been commonly acquiesced in. These ;■ 
cases, however, form exceptions to a rule which is general, — that 
it is the State legislatures which apportion their several States 
for Congressional elections. I have failed to find a single excep- ': 
tion to that rule save in the cases of Territories seeking to be- , 
come States, or of States standing substantially on the same \ 
footing as Territories.^ /f I 

Besides, in one view of the subject, such action of the Terri- | 
tories, taken in connection with that of Congress following it, i 
involves no impropriety, if it is not strictly regular. Imme- 
diately following that clause of the Federal Constitution giving 
the power of determining the " times, places, and manner of / 
electing senators and representatives " to the State legislatures,/ 
is the important reservation, "but the Congress may at any 
time, by law, make or alter such regulations, except as to the 
place of choosing "senators." Hence, having the power to make 
or alter. Congress doubtless might ratify such regulations, how- 
ever made ; or, if a State, actual or inchoate, were in such a 
condition, that it had no lawful legislature. Congress might 

1 The Louisiana Reconstruction Convention of 1864, which stood on a footing 
in some respects similar to that of a Territory preparing itself for admission into 
the Union, apportioned the State for the election of members of Congress. We 
have seen, however, that that body was a revolutionary one, — a provisional gov- 
ernment, — erected under the sanction of the military arm. See ante, §§ 247- 
249. 



410 CAN A CONVENTION LIMIT A DISCRETION 

itself, for the sake of convenience, establish them by its direct 
action. This it does, in substance, by anticipation, in those 
cases in which it accepts and admits into the Union Terri- 
tories, presenting themselves with Constitutions containing the 
apportionments referred to. . 

§-^447 (b). Similar considerations enable us to dispose of the 

second case relating to the power of a Convention, as a legis- 
lature, to act upon proposed amendments to the Federal 
Constitution. Article V. of that Constitution provides, that 
Congress, whenever two-thirds of both houses shall deem it 
necessary, shall propose amendments to that instrument, or, on 
the application of the legislatures of two-thirds of the several 
States, shall call a Convention for proposing amendments, which 
in either case shall be valid as parts of the Constitution, " when 
ratified by the legislatures of three-fourths of the several States, 
or by Conventions in three-fourths thereof, as the one or the 
other mode of ratification maybe proposed by Congress." 

By a joint resolution of Congress, approved March 2, 1861, 
an amendment was proposed to the Constitution of the United 
States, inhibiting any amendment to such Constitution which 
should authorize Congress " to abolish or interfere within any 
State, with the domestic institutions thereof, including that of 
persons held to labor or service under the laws thereof." The 
mode of ratification proposed by Congress was by the action 
of " the legislatures of three-fourths of the several States." The 
legislature of the State of Illinois, having at its session held in 
1861 failed to ratify this amendment, the Convention of that 
State, of 1862, attempted to supply a remedy. After a discus- 
sion, in which the difficulties attending the assertion of the 
power in question were considered on constitutional grounds, 
the Convention, by a decisive vote, passed a resolution ratifying 
the proposed amendment. 

Respecting this action of the Convention, I deem it unneces- 
sary to say more, than that there is not, in my judgment, on legal 
grounds, a shadow of reason for the construction given to the 
Constitutional provision, and that party zeal alone could have 
led the eminent men who composed that body, to the position 
assumed in the discussion. 

§ 448. 3. The last practical question proposed for discussion, 
is whether a Convention has power, by constitutional regulation 



CONFIDED TO A LEGISLATURE BY THE FEDERAL CONSTITUTION ? 411 

or otherwise, to limit a discretion confided to a State legislature 
by the Constitution of the United States ? 

This question arose in the Massachusetts Convention of 1820, 
under the following circumstances. Mr. Austin, of Boston, in- 
troduced into that body a resolution affirming the expediency 
of electing representatives in Congress and presidential electors, 
in districts to be determined by the legislature, instead of by gen- 
eral ticket, as it is called, and requiring that body, immediately 
after every apportionment of representatives by Congress, to pro- 
vide by law for so electing them. By the second section of the 
Federal Constitution, it is directed, that the members of the Na- 
tional House of Representatives shall be chosen " by the people 
of the several States," and by the fourth section, that " the times, 
places, and manner of holding elections for senators, &c., shall 
be prescribed in each State by the legislature thereof." 

By the mover of this resolution, it was not denied that it 
was by the legislature, and not by a Convention, that the times, 
places, and- manner of electing senators, &c., were to be deter- 
mined ; but he contended that the latter had a right to limit the 
former in the exercise of its discretion ; that the legislature was 
bound to exercise all its powers under the direction of the Con- 
stitution, and that the people had at the same time the right to 
impose upon the legislature such terms and conditions as they 
should deem advisable ; that admitting the right of imposing 
the particular restriction in question, the expediency of it was 
beyond dispute ; for, it was said, that " when electors and repre- 
sentatives are chosen in large districts, the rights of the minority 
are destroyed. It is only by dividing the State into small por- 
tions, that there can be a fair expression of public opinion." ^ 

§ 449. On the other hand. Judge Story contended that the 
proposed restriction was in conflict with the Federal Constitu- 
tion ; that by the latter instrument a discretion as to the choice 
of electors was given to the legislature ; that that discretion was 
unlimited, and yet the proposition before the Convention went 
directly to destroy that freedom of choice, and compelled the 
legislature to resign all manner of choice but one ; that it was 
bound to exercise its authority according to its own views of 
public policy and principle ; but that the proposition in question 
compelled it to surrender all discretion ; that a strong objection 
1 Deh. Mass. Conv. 1820, pp. 106-108. 



412 EXPRESS POWERS OF CONTENTIONS. 

to that proposition, moreover, was that if it should be adopted by 
the Convention, and ratified by the people, the legislature would 
probably follow the rule presented by the proposed amendment; 
that the members of the legislature were under oath to support 
the Constitution of the State ; that they were also under oath 
to support the Constitution of the United States ; but would it 
not, it was asked, be a violation of their oaths to bind them- 
selves not to choose representatives in any manner that the Con- 
stitution of the United States allowed, except that stated in the 
amendment? As to the question of policy, he admitted that 
a uniform mode of choosing representatives and electors by 
districts throughout the United States, would be a great improve- 
ment in the National Constitution ; but he urged that the question 
before the Convention was not of that nature ; that it went to 
limit Massachusetts to a particular mode of choice, leaving the 
rest of the United States free to adopt any other, the result of 
which would be, on the most important occasions, to deprive 
that State of all the influence to which her talents j character, 
and numbers entitled her. 

In these views, Mr. Webster, also a member of the Conven- 
tion, coincided, and the proposed amendment was not adopted.^ 

§ 450. 11. The preceding sections of this chapter have been 
devoted to a delineation of the powers of Conventions, resulting 
from what may be called their external relations ; that is, their 
powers with reference to the sovereign society at large, and to 
the government of the State, both in general, and as divided 
into several distinct departments. It remains now to inquire 
what powers belong to them by reason of their internal rela- 
tions, having reference, for example, to the perfecting of their 
organization, to the maintenance of discipline over their mem- 
bers or over strangers, and to the prolongation or perpetuation 
of their existence. 

The powers of Conventions, considered from this point of 
view, are, first, such as are expressly given by the Act under 
which they assemble ; or, secondly, such as are implied as being 
necessary to the exercise of these express powers, or as inci- 
dental to the complete execution of their commission. 

§ 451. First. With respect to powers expressly given, it is 
unnecessary to speak at much length. In general, a power ex- 
1 See Deh. Mass. Com. 1820, pp. 109-112. 



IMPLIED POWERS OF CONVENTIONS. 413 

pressly granted to a Convention by a legislative Act or by a 
Constitution, is a power, the right to exercise which cannot be 
denied to it. Whether this rule is one whose application is 
universal, is a question of some delicacy which may be worthy 
of a short examination. To ascertain whether the rule has 
limits, an extreme case may be put. Let us suppose, that in 
calling a Convention, the legislature has authorized or required 
it to enact or to recommend measures subversive — 1, of the 
laws of morality ; or, 2, of the guaranties of the public liberties, 
not extending, however, to the abrogation of republican forms. 
Would the Convention have power — not would it be obliged, 
but would it be competent — to obey? 1. As to measures 
mala in se, the answer is, that the Convention would derive from 
such an Act no power whatever, for no body of men can give 
to another power to do what neither can rightfully do indepen- 
dently, — power in extent greater than is possessed by the giver. 

§ 452. 2. More difficulty exists in relation to measures of the 
second class, which, in general, would be merely mala prohibita, 
though, doubtless, some of them, by destroying safeguards long 
recognized as essential to liberty, might be considered as tainted 
with positive immorality. But assuming that all such measures 
would, on a j^fiori moral grounds, be indifferent, would a Con- 
vention then be competent to enact or recommend them ? The 
answer clearly must be in the affirmative. Thus, were a legis- 
lature to require or authorize a Convention in the Constitution 
it should frame to repeal the entire Bill of Rights, or to insert 
clauses empowering the legislature to establish a censorship of 
the press, or the judiciary to issue general warrants, although 
the measures indicated would endanger some of our most valued 
rights, yet not being necessarily incompatible with the existence 
of republican government, or within the range of direct Federal 
prohibition, they would not be beyond the competence of the 
Convention. 

§ 453. Secondly. It is the implied or incidental powers, 
claimed by or attributed to Conventions, that are of principal 
interest in this discussion ; powers, that is, involved in the 
general grant of authority to assemble in Convention to revise 
the fundamental law. Conceiving of Conventions, then, as we 
must, as mere committees, what powers have they resulting by 
implication from their general character or from the nature of 



414 POWERS OF CONVENTIONS RESPECTING THEIR ORGANIZATION. 

their business in relation to the points indicated ? The general 
rule is undoubtedly this : — as Conventions are commonly nu- 
merous assemblies, containing, in most cases, the same number 
of members as the State legislatures, they are possessed of such 
powers as are requisite to secure their own comfort, to protect 
and preserve their dignity and efficiency, and to insure orderly 
procedure in their business. For the attainment of these ends, 
they are not without the authority possessed by agents in gen- 
eral, and, in my judgment, they are possessed of no other or 
greater. Thus, they must have a suitable hall, adequately 
warmed and lighted ; and, though the Acts calling them were 
silent on the point, they would unquestionably have power to 
engage one, and to pledge the faith of the State for the rental 
thereof. So, there can be no doubt, a Convention would be au- 
thorized to appoint such officers and servants as the custom of 
public assemblies in free communities has sanctioned, or as may 
seem under the circumstances, to be necessary. 

§ 454. In respect to a president and secretary or secretaries, 
there can be no question. The convenience of members and the 
despatch of business would point also to messengers or pages 
as requisite. The same may be said perhaps of one or more 
door-keepers, since, if the hall where the session is held, were 
accessible to everybody, at all hours, the functions of the Con- 
vention might be seriously interrupted, and its dignity insulted. 
With respect to a sergeant-at-arms, some doubt exists. It is a 
universal practice in Conventions to appoint such an officer, 
and the right of doing so for certain purposes cannot be denied. 
The doubt arises in relation to his powers, which of course in- 
volves the competence of those bodies to vest him with them. 
A sergeant-at-arms is defined to be " an officer who executes the 
commands of the house in apprehending delinquents or offend- 
ers, and in preserving order," &c.^ 

As to one of these functions, that relating to the preservation 
of order, some officer charged therewith would doubtless be neces- 
sary in any assembly ; but if it be true, as we shall attempt 
to show hereafter, that Conventions have no magisterial powers 
whatever beyond those possessed by every public meeting, it is 
doubtful whether a sergeant-at-arms is not a useless piece of 
ostentation in those bodies. In the case of a legislature, that 
1 Worcester's Diet, in verb. " Sergeant." 



POWER WITH RESPECT TO STATIONERY, PRINTING, ETC. 415 

officer discharges all the functions indicated by the definition. 
Moreover, the name sergeant-at-arms was undoubtedly derived 
from the sterner duties of his office, involving the arrest of de- 
linquents, whether members of the body or strangers. For the 
present, however, I shall assume that the sergeant-at-arms of a 
Convention lacks the function which gives to the name of the 
corresjDonding officer of a legislature its appropriateness, and is 
a functionary, like a secretary or door-keeper, destitute of proper 
police powers. In his limited capacity, however, his duties are 
important. " He attends upon the Convention, maintaining 
order among those present, serving its processes and executing 
its orders, giving notice to the presiding officer of persons at- 
tending with messages, or other communications ; he has the 
appointment and supervision of the various officers of his de- 
partment — and, as housekeeper of the house, has charge of all 
its committee rooms and other buildings during its sitting." ^ 
In short, he is the principal executive officer of the Conven- 
tion. 

How this officer came to be called a sergeant-at-arms, with 
powers so inferior to those indicated by his title as well as to 
those wielded by his namesake in the legislature, is shown by 
the origin of Conventions. We have seen that the first Conven- 
tion, the type, in some respects, of all that have followed, was 
a Parliament irregularly called and constituted — a revolutionary 
assembly, modelled after the legitimate legislative branch of the 
government, with the same officers, and, in general, the same 
modes of proceeding. Of this original perversion of a Parlia- 
ment, called the " Convention Parliament," our earliest Conven- 
tions, during the Revolution, were close imitations, both in 
structure and organization ; and when, upon the foundation of 
our constitutional system, those exceptional and revolutionary 
bodies were transformed and introduced into it as part of the 
regular constitutional apparatus, their scheme of officers and 
rules and modes of proceeding were also adopted, without sub- 
stantial modification. 

^ 455. The power of a Convention to supply its members 
with stationery is perfectly clear ; but in reference to the public 

I Cushing's iaw) and Prac. of Lecjisl. Assemh., 2d ed., p. 131. The description 
quoted above is adapted from that given by Gushing of the sergeant-at-arms of a 
legislature. 



416 POWER WITH RESPECT TO REPORTS OP THEIR DEBATES. 

journals there has been some doubt, though upon precedent as 
well ds upon principle, the power must probably be admitted. 
It has been the practice of nearly all the Conventions held in 
the present century, to order, as well for the use of the members, 
as for distribution among their constituents, one or more news- 
papers for each member during the session. The reason usually 
assigned for this expenditure is, that it is important there should 
be a direct and constant communication between the people 
and their delegates in the Convention, in order that the latter 
may as perfectly as possible reflect the public will. If all that 
is proposed and discussed, be submitted immediately to the 
people, with the reasons for and against, a thing possible only 
through the medium of the press, the delegates would be guided 
and moulded by a reflex wave of sentiment which would be 
fresh and unmistakeable. Every thing which, within reasonable 
limits, conduces to that end, and at the same time conforms to 
the usages and is not foreign from the purpose and nature of 
the Convention is, by a liberal construction of its powers, au- 
thorized. 

§ 456. The same principle applies to the case of phonographic 
reports and printing for the Convention. It would be a most 
niggardly policy which should refuse the expenditure necessary 
to the preservation of most full and accurate reports of its de- 
bates and proceedings. Upon this subject, however, there has 
been very great difference of views in different Conventions. 
In many of the States, volumes have been published, containing 
both the journals and the debates of all their Conventions. In 
others, the subject seems not to have been regarded as of any 
consequence whatsoever ; and what little has been preserved 
has been owing to the private enterprise of the newspaper press. 
The result is, that the memorials of the most important public 
bodies ever assembled in those States, are often very meagre, 
and more often confused and inaccurate. Such a policy is 
" penny wise and pound foolish." In after years, when it has 
become impossible to replace what has been lost, more enlight- 
ened public opinion commonly finds cause to regret a paltry 
economy which deprives history of its most important data. It 
should be remembered, that our Conventions lay the foundations 
of States, many of which are to rival the greatness and glory 
of Rome, of England, and of France. In a hundred years from 



CHARACTER AND VALUE OF CONVENTION DEBATES. 417 

now, what treasures would they not expend, could they purchase 
therewith complete copies of their early constitutional records — 
documents standing to their several organizations in the same 
relation as would the discussions of those ancient sages who 
framed the Twelve Tables of the Roman law, to the Republic of 
Rome. 

§ 457. And here I may be indulged in a remark or two in 
relation to the character and value of the debates of our Con- 
ventions. 

Doubtless, to the listener, few public assemblies would exhibit 
so little that is attractive as those bodies. There are, of course, 
in them, much garrulity and much ignorance, and the topics of 
discussion are abstract and unfamiliar. Accordingly, the pub- 
lished conventional debates are dreary wastes of platitudes, 
dotted here and there with gems of wisdom and eloquence. . So 
well is their prevailing character known, that in some of the 
later Conventions particular pains have been taken to discour- 
age speech-making by the establishment of rules limiting debate 
— prominent delegates in one case, where there were no rules, 
directing the reporters to omit the speeches they themselves 
should make. But I am persuaded that a diffuse style, tainted 
in every period with rhetorical vices, is not incompatible with 
a high degree of political wisdom, and that all such attempts, 
however well-meant and, on grounds of taste, deserving of gen- 
eral sympathy, are ill-judged and harmful. When measures are 
under deliberation, which rest on principles alone, the opinions 
of commonplace men are frequently of as much value, and are 
likely to be quite as original, as those of the more gifted debaters. 
At all events, it is eminently useful to a public assembly to listen 
to the observations upon any subject, of many men of various 
callings, and of unequal attainments. If their thoughts are not 
generally profound, they are often suggestive ; and, in a delib- 
erative body, it is not so much the remarks of those who speak, 
as the reflections upon them of those who listen, which ripen 
its measures. The truth of this is seen in perusing the printed 
reports of the debates in our Conventions. One cannot go 
through the discussion of any important measure, in which men 
of ordinary minds participated, without being surprised to find 
fresh light constantly flowing over the subject from speeches, 
which not all the polishing of the reporter could make other- 

27 



418 POWER WITH RESPECT TO PRINTING. 

wise than offensive to a cultivated taste. In my judgment, 
therefore, it is unwise, where questions relating to the funda- 
mental law, always more or less abstract, are under discussion, 
to limit or discourage debate to the same extent that might be 
advisable in a legislature, in which the measures proposed are 
commonly such as carry their policy or impolicy upon their faces ; 
or, at least, in reference to which, if a mistake be made, the 
consequences are not so disastrous or so lasting. Hon. Henry 
A. Wise is said to have declared in the Virginia Convention of 
1850, that " he would not give a fig for any Constitution that 
was framed in less than twelve months," — a remark involving 
some exaggeration, but indicating a much more proper apprecia- 
tion of the importance of mature deliberation in organic legis- 
lation than the contrary extreme. There are no greater ene- 
mies to their respective States than those foolish delegates who 
are no sooner seated in Convention than they begin to clamor 
for less speech-making and more voting, with a view to an early 
adjournment and a light bill for Convention expenses.^ 

§ 458. In relation to the printing for the Convention, the case is 
very clear. If the Act calling the body provides for it, or requires 
it to be done in a particular manner or by a designated person, 
or limits it in amount or in cost, doubtless the Act should be 
obeyed. But, unless thus restricted, the power of the body to 
order its printing to be done, is as undoubted as to engage a 
hall or the requisite executive officers. The only alternative is, 
the employment of secretaries enough to furnish written copies 
of all papers and documents used in the course of its business. 
This would be possible, and such provision would, after a sort, 
answer the purpose. But it is certain, that the measures pro- 
posed would be neither so well understood nor so rapidly ma- 
tured, if thus presented, as if they were printed. To this may 
be added, that the expense of printed would be much less than 
of written copies, and that the length of the session would 
probably be reduced by the use of them. The employment, 
then, of printed matter, being clearly within the power of the 
Convention, as incident to the speedy and convenient execution 
of its commission, the extent of it rests in the discretion of that 

1 On this subject, see the excellent remarks of Hon. Mr. Sergeant, President 
of the Pennsylvania Convention of 1837, in Deh.Penn. Conv. 1837, Vol. I. pp. 
304, 305. 



POWER WITH RESPECT TO THE MAINTENANCE OF ORDER. 419 

body, and it can bind the government, within reasonable limits, 
by its contracts therefor. 

§ 459. A Convention having provided itself with the officers 
needed to do or to expedite its work, its attention would be next 
directed to the subject of maintaining order in the transaction 
of its business, and in the conduct of its members. For this 
purpose, rules of order are necessary. There is sometimes in- 
serted in the Act calling the Convention, a power to establish 
such rules as should be deemed requisite ; but, without such a 
clause, a Convention would clearly be authorized so to do. It 
is usual, before rules have been reported by the special committee 
for that purpose, to adopt temporarily those of the last Conven- 
tion, or of the last State House of Representatives. In the 
absence of such a vote, it has been said, that the lex parlia- 
mentarian as laid down in the best writers, is in force. If by 
this is meant, that the maxims of common sense, having refer- 
ence to the protection of the rights of minorities, to the preser- 
vation of order, and to the speedy transaction of the business in 
hand, as the same are determined by the experience of public 
bodies, are to be taken as a guide, the proposition may be ac- 
cepted, since the lex parliamentaria is but a body of practical 
rules founded on those very maxims. How^ever that may be, it 
is undeniable that that law remains in force only at the discre- 
tion of the Convention. It may at any time be abrogated, partly 
or wholly, though it is certain that, if abrogated, there could 
not be substituted for it a system which, in its leading princi- 
ples, should be contrary to the spirit of that law. So far as it 
should be so, it would operate as a device either to fetter the 
Convention in the exercise of its unquestioned powers, or to rob 
of their rights a minority of its members. It is not my purpose 
to inquire farther into the nature or extent of the rules of order 
which it is in the power of Conventions to adopt, but I pass to 
a question, not unrelated to that inquiry, though of vastly greater 
importance, namely, whether Conventions have power to arrest 
or to punish for offences committed against themselves or against 
their members, and to w^hat extent? 

§ 460. This question may be considered in reference 

1. To offences committed by their own members, in their own 
presence ; and 

2. To offences committed by strangers, outside their walls, 
including the power to compel obedience to their mandates. 



420 POWEE WITH EESPECT TO THE MAINTENANCE OF ORDER. 

Before proceeding to consider these questions, however, I shall 
premise a few words in relation to the general principles which 
limit or determine the power of Conventions in this regard. 

As a Convention is not a legislature, though a body, by dele- 
gation, exercising some legislative functions, but of so limited 
and subordinate a character as to entitle it to rank only as a 
legislative committee, it cannot do, even for its own defence, 
acts within the competence only of a legislature, or of a body 
with powers of definitive legislation. It can do, or authorize 
to be done, such things only as every assemblage of citizens is 
competent to do, as being necessary to the enjoyment of the 
right of freemen peaceably to assemble, guaranteed by our Con- 
stitutions. These would differ in different circumstances. If 
a mob were to enter the hall of a Convention and seek to over- 
awe it, the body would doubtless be authorized to eject it, if 
practicable without a breach of the peace. On the other hand, 
were a riotous assemblage to gather in the vicinity of a Conven- 
tion, threatening its members with bodily harm, or assailing them 
with abusive epithets, it is conceived that the body would have 
no power to disperse it, or to arrest or otherwise punish the per- 
sons composing it — at most, no greater power than would be 
possessed by any citizen or body of citizens. Its duty would 
be to call upon the constituted authorities forniing the govern- 
ment of the State. It is true, cases may be imagined in which 
such a rule would place Conventions at the mercy of the popu- 
lace, the government being unable or unwilling to interfere to 
vindicate the rights of those bodies. But those would be ex- 
treme cases, only existing where revolutions were impending. 
The liability to be so interrupted is shared by Conventions with 
all civic gatherings for social or political purposes. It would 
not be pretended, that, because the latter are liable to be dis- 
turbed by evil-disposed persons, they are authorized to exercise 
general police powers. Why then attribute those powers to the 
former ? The laws are equally open to both, and there are, ever 
vigilant and ever ready, administrative officers charged to apply 
those laws to preserve the peace, and to give to every citizen, 
whatever his function, that protection which shall enable him to 
exercise it. 

§ 461. It may be said, that legislatures wield powers much 
more extensive than those to which we seek thus to limit Con- 



POWEB TO DISCIPLINE THEIR OWN MEMBERS. 421 

ventions, and it may be asked, Why, if those powers are deemed 
necessary to the former, they should be less so to the latter ? The 
answer is, because the former possess them. If they exist any- 
where in the government, it is enough ; and not only so, but the 
fact that they exist in one department or agency, is evidence 
that they do not, and a reason why they should not, exist else- 
where. 

So, the inference that Conventions ought to have within them- 
selves all the powers necessary for any emergency of violence 
or sedition, because our courts of justice and our corps of 
administrative officers have authority to vindicate their own 
dignity and independence, is wholly unauthorized. Not to 
mention that those bodies are largely dependent on our legisla- 
tures for the measures most effectual to protect them from insult 
and violence, they are radically different from Conventions — 
they are political agencies in the actual exercise of functions of 
government. It is proper that they should be vested with orig- 
inal powers of self-protection, since otherwise there could not 
exist that independence of each other in which alone safety 
would be possible. The three ordinary departments of a gov- 
ernment need to be armed for self-defence against each other, 
at all points, because their spheres of action are conterminous, 
and they stand ever in each other's presence. Not so with Con- 
ventions, in relation to other State agencies ; they are occasional, 
exceptional, and subaltern assemblies, charged with a special 
and limited function, and, therefore, have far less need of the 
powers indicated than either of those departments ; or if those 
powers should be thought to be indispensable to their safety or 
efficiency, they must be wielded and exercised by the govern- 
mental agencies in which our Constitutions have vested them. 

§ 462. 1. The power of a Convention to discipline its own 
members for offences committed in its presence is undoubted, 
and of considerable extent. The order and dignity of public de- 
liberative bodies may, in many ways, be so assailed as seriously 
to interfere with the progress of business, if not wholly to inter- 
rupt it, yet without the commission of any misdemeanor for 
which the offenders would be amenable to the laws. A Conven- 
tion, having no power to make laws giving the magistrates juris- 
diction of such offences, unless it could, by sanctions of its own, 
enforce its rules for the preservation of order, it would be at the 



422 POWER TO DISCIPLINE THEIR OWN MEMBERS. 

mercy of such members as chose to do the work of violence, 
but to do it in such a manner as to elude the penalties for a 
breach of the peace. To prevent this is the principal object of 
rules ; and every public assembly, by its very nature, must have 
power to make and to enforce them in some modes appropriate 
to its ow^n Constitution. To Conventions, however, it must be 
admitted, the range of sanctions is not very wide. For minor 
offences, it would be confined, probably, to reprimand, and for 
the more heinous, to expulsion from the body; or, in cases of 
actual violence to arrest and tradition to the public authorities. 
Power to this extent I conceive to be indispensable to the exist- 
ence of any deliberative assembly ; and, without assuming the 
character of a legislature, with power to create and to invest 
officers and tribunals with jurisdiction to punish offences, I can 
imagine it possessed of no greater. The power to arrest an 
offender, in the case supposed of actual violence, would involve 
that of safely keeping, and, if necessary, of confining him until 
he could be delivered to the officers of the law. So, the power 
to expel a member would carry with it that of suspending, which 
is less, or of suspending with forfeiture of pay, temporarily or 
altogether, according to the degree of the offence. But the 
power could not be claimed, in the former case, to imprison as 
a punishment, or for a longer time than should be necessary to 
secure the arrested member until he could be transferred to the 
magistrates, on complaint regularly made ; ^ or, in the latter, to 
pass from a forfeiture of pay (if that be regarded as allowable) 
to the imposition of pecuniary mulcts. 

§ 463. In reference to the question of punishing offences by 
forfeiture of pay, if within the competence of a Convention at 
all, its action would be, like its proceedings in general, recom- 
mendatory, and not final. By directing its president or other 
proper officer to withhold from a delinquent his certificate, a 
Convention would make it impossible for him to draw his pay, 
unless it were specially awarded to him by a subsequent legisla- 
ture. 

§ 464. The offences by which members may subject them- 

1 To our legislatures, our Constitutions sometimes expressly give power to im- 
prison as a punishment for offences, but without such express provision they are 
understood to possess the power, and it is the punishment commonly resorted to 
by those bodies in cases requiring some degree of severity. See Cushing's Law 
and Pract. of Legist. Assemh., p. 267. 



POWER OF CONVENTIONS TO DISCIPLINE STRANGERS. 423 

selves to whatever power of discipline a Convention possesses, 
are of various kinds, not differing materially from those that may- 
occur in a legislature, which have been described by Gushing 
as follows : — 

" Members may be guilty of misconduct, either towards the 
assembly itself, towards one another, or towards strangers. Mis- 
conduct of members towards the assembly, besides being the 
same in general as may be committed by other persons, consists 
of any breaches of decorum or order, or of any disorderly con- 
duct, disobedience to the rules of proceeding, neglect of attend- 
ance, etc. ; or of any crime, misdemeanor, or misconduct, either 
civil, moral, or official, which, though not strictly an attack upon 
the house itself, is of such a nature as to render the individual 
a disgrace to the body of which he is a member. Misconduct 
of members towards each other consists of insulting remarks in 
debate, personal assaults, threats, challenges, etc., in reference 
to which, beside the ordinary remedies at law or otherwise, the 
assembly interferes to protect the member who is injured, in- 
sulted, or threatened. Offences by members towards other per- 
sons, of which the assembly has cognizance, consist only of 
injurious and slanderous assertions ; either in speech or by writ- 
ing, which, as there is no other remedy,^ the assembly itself, if 
it thinks proper, takes cognizance of, and punishes." ^ 

§ 465. 2. In relation to the power of a Convention to vindi- 
cate its safety or its dignity by disciplining strangers, there is 
greater difficulty. The right to exercise such a power must be 
inferred either from the fact that it is held and exercised by legis- 
latures, or that it is absolutely necessary to the exercise of powers 
admitted to belong to Conventions. 

In probably all the State legislatures, the power is asserted to 
imprison persons not members for contemptuous or disorderly 
behavior in their presence; for threatening, assaulting, or abus- 
ing any of their members for any thing said, done, or doing in 
either house ; or for a breach of their privileges, in making ar- 

1 The statement that " there is no other remedy," is applicable only to legis- 
latures, and is justified by the principles established in relation to the privileges 
of such bodies. Custom has ordained that it is a breach of privilege to question 
a member of a legislature for words spoken in the house in debate, and many 
of our Constitutions expressly recognize the protection. Gushing 's Law and 
Pract. of Legisl. Assemb. p. 250. 

2 Id. p. 259. 



4*24 POWER OP CONVENTIONS TO DISCIPLINE STRANGERS. 

rests for debt, or in assaulting or disturbing their officers in the 
execution of any process or order of the houses ; or in assault- 
ing a witness or other person ordered to attend upon them, or 
rescuing persons arrested by their order, knowing them to be 
such. But it is a noticeable circumstance, that in a great pro- 
portion of the cases in which the power is exercised by legisla- 
tive bodies, it is done in pursuance of express authority given 
in their respective Constitutions. This fact might cast a doubt 
on the right, where no such" provision exists, were it not that it 
has become thoroughly established by prescriptive usage, as Mr. 
Gushing has said, " that in all the States, as well those whose 
Constitutions do not, as those which do contain " a clause au- 
thorizing its exercise, " each of the legislative branches has juris- 
diction, according to the common parliamentary law, of all 
offences committed against it by persons not members." ^ But 
the fact that no law or Constitution has ever recognized the 
existence of such a power in Conventions, authorizes a doubt 
in regard to it. Those bodies are governed by the parliamentary 
law, but as all other public assemblies are, that is, so far only 
as is consistent with their special character and functions. Not 
all provisions of what is called the parliamentary law are in 
force in relation to all deliberative assemblies. The English 
Parliament differs, in this respect, from our Congress, and the 
latter from the State legislatures, which again differ from Con- 
ventions of all kinds, amongst which last, finally, there are char- 
acteristic differences. It is for this reason, that no work relating 
to the law and practice of any one of those bodies can be fol- 
lowed as an absolute guide in any other. In some measure the 
functions, and to a very great extent, the powers, of all those 
bodies differ, and thus necessitate different laws and usages. 
The fact, then, that the power in question is commonly exercised 
by our legislatures, has no tendency to prove that it belongs 
also to Conventions. 

. § 466. Is the power to arrest or imprison persons, not mem- 
bers of Conventions, for offences committed outside of their halls, 
indispensable to the exercise of the powers confessedly vested 
in those bodies ? In my judgment, this cannot be pretended. 
For a moment forgetting the danger of vesting such a power in 
a single chamber, a power involving, of course, that of holding, 
1 Cushing's Law and Pract. of Legisl. Assetnb.^ pp. 270-272. 



POWER OP CONVENTIONS TO DISCIPLINE STRANGERS. 425 

in spite of courts and legislatures, persons declared by it guilty 
of violating its privileges or of contempt of its authority, is there 
substantial ground for pronouncing the power to be necessary ? 
If it were admitted, that both the government of the State 
in its various departments, and the government's master, the 
sovereign, were hostile to the Convention, interested and deter- 
mined to compass its overthrow, there would be plausibility in 
claiming for it the power as a means of self-defence. But the 
hypothesis is at variance with all the facts. If the Convention 
be legitimate, it is the offspring of the government, deriving its 
origin from an Act concurred in by both the legislature and the 
executive, and exists constantly under the guardianship of those 
two friendly powers, which, in point of time, preceded it, and 
which accompany and will survive it, so that at no moment can 
it be at the mercy of hostile influences, and, therefore, stand in 
need of the extraordinary powers claimed for it. 

§ 467. Very little light is thrown upon the general question 
above discussed by precedents. One or two cases, however, 
have arisen bearing upon it, to which reference will be made. 

The Illinois Convention of 1862, on a suggestion that a re- 
porter for one of the daily journals had imputed to a large pro- 
portion of its members complicity with a disloyal society, known 
as the " Knights of the Golden Circle," appointed a committee 
to investigate the charge, with power to send for persons and 
papers^ and to swear witnesses.^ which, of course, involved the 
power to compel obedience to its summons, by arrest or im- 
prisonment, if necessary. 

As may be inferred from the high tone of that Convention, in 
respect of its prerogatives, the power was exercised without re- 
serve; witnesses were summoned from all quarters, and their 
statements taken under oath. It does not appear that the pow- 
ers of the committee were questioned, and, therefore, whatever 
weight a precedent, established by a Convention disposed to 
magnify its office, but whose entire labor was repudiated by the 
people, may be thought to deserve, it must be allowed to have. 
As the instances are very rare, if any have occurred since the 
Revolutionary period, in which Conventions have claimed such 
powers, their propriety may be doubted, unless shown to be in- 
dispensable to the practical working of the Convention system. 
Whether it was so or not in Illinois, may be inferred from the 



426 POWER OF CONVENTIONS TO DISCIPLINE STRANGERS. 

considerations before presented, and also from the particular 
facts of the case. The substance of the offence charged against 
the reporter, was the publication of libellous imputations upon 
the members of the Convention. But it is not easy to see how 
a libel, contained in a newspaper outside of the organization 
whose members were assailed, and relating to those members 
not in their character as delegates, but as citizens and patriots, 
could in any way interfere with the orderly and complete execu- 
tion of the commission of the collective body. The presump- 
tion of the necessity of such a power is much weakened when 
it is considered how a committee acting under such circum- 
stances would be likely to protect and vindicate the public in- 
terests. The discussion in the Convention on the subject of 
appointing a committee, indicated that the libel was thought 
to reflect on members belonging to only one of the political 
parties in the body. That party was in a majority in the Con- 
vention. Hence the charges in substance imported that a large 
number, perhaps a majority, of the party dominant in that 
body was connected with a disloyal society, whose aim was to 
revolutionize the State. Suppose those charges to have been 
well founded ; would an inquest, ordered and conducted by a 
majority of which a large proportion were traitors, furnish to 
the public interests adequate protection against their own trea- 
son ? If, on the other hand, there were no truth in the charges, 
would it comport with the public interest or dignity, that an 
important deliberative assembly should lend itself to purposes 
of private revenge, or squander its time in tracing the pedigree 
of slanders propagated by nameless scribblers in the public 
journals, and affecting not the body itself, but its members as 
individuals? Have we no judicial tribunals for the very pur- 
pose of conducting such inquiries whenever a responsible ac- 
cuser can be found, or are those bodies, standing aloof from 
partisan strifes, less fitted to conduct them than a Convention, 
whose functions, whatever else they may be, are certainly not 
judicial ? 

§ 468. In regard to the power given to the committee to ad- 
minister oaths, but a word is necessary. There can be no ques- 
tion, that the appointment of a committee with such a power 
involved an exercise of ordinary legislation, to which the Con- 
vention was not competent. Unless its action should have the 



POWER OF CONTENTIONS TO DISCIPLINE STRANGERS. 427 

effect of a law, by which a witness could be compelled to take 
the oath, and be made liable to the penalties of perjury in case 
it were broken, it was wholly nugatory. Would our courts 
pronounce guilty of perjury any man who should falsely take 
an oath thus authorized? Would not the act of administer- 
ing such an oath be within the statutes against extra-judicial 
oaths ? 

§ 469. The only instance I shall mention in which a Conven- 
tion has assumed to exercise the power of arresting persons, 
not members of its own body, occurred in Louisiana, in 1864 ; 
and I refer to it rather because it furnishes a convenient text in 
connection with which to consider the conventional power of 
arrest, as a practical question, than because the precedent is of 
much value in itself 

On the 22d of July, near the close of the session of that Con-, 
vention, there appeared in the New Orleans " Times " newspaper, 
an article containing severe strictures upon the president and 
other members of that body, — in plain language imputing to the 
former, on the preceding day, drunkenness in his chair, and to 
the latter, riotous and unseemly behavior. On the morning of 
its appearance, the president arose to a question of privilege and 
called the attention of the Convention to the article in the 
" Times," which he declared to be a libel against himself as 
well as the Convention. The following resolution was there- 
upon offered by Mr. Cutler, and adopted: — 

^'■Resolved, That Thomas P. May, editor of the New Orleans 
" Times," be brought before this Convention forthwith, by the 
sergeant-at-arms, and that he be required to purge himself of 
the contempt and libel on this body, as published in the issue 
of July 22, 1864, or that he be otherwise dealt with as the Con- 
vention may deem proper and just." 

Mr. May, surrounded by his friends, refused to be arrested, and 
an order was thereupon procured from General Banks, then in 
command of the Department of the Gulf, with his headquarters 
at New Orleans, directing the Provost Marshal to arrest him 
and take him before the Convention. Brought, on the following 
day, to the bar of that body, the president read the foregoing 
resolution, and asked Mr. May what reply he had to make; 
whereupon that gentleman read the following paper : — 

" I am here with the Provost Marshal to obey a military order 



428 POWER OP CONVENTIONS TO DISCIPLINE STRANGERS. 

issued by General Banks, and not in obedience to a resolution 
of this Convention. At the proper time, in the proper place, 
and in pursuance of the forms of law, I will answer to any 
charge made against me and my paper, the ' Times.' " 

Mr. Henderson moved that this answer be considered as an 
additional contempt, which, after some discussion, was adopted. 
The Convention then, after a preamble charging upon Mr. May 
disloyalty to the government, and a gross libel against the presi- 
dent and members of the Convention, as well as contempt of 
its authority, by a vote of 49 to 31, adopted the following reso- 
lution : — 

" Resolved, that Thomas P. May, Esq., for his said contempt 
committed upon the president and members of this Convention, 
in publishing in said paper said libel, shall be imprisoned in the 
parish prison of the Parish of New Orleans for the space of 
ten days, unless the Convention sooner adjourns ; and that the 
sergeant-at-arms be directed and authorized to carry this resolu- 
tion into effect." 

To this resolution there followed others requesting^ the mili- 
tary authorities to sujjpress the publication of the " Times,''^ and 
the President of the United States to remove Mr. May from a 
federal office held by him. 

§ 470. In connection with the above resolutions, it is proper to 
note, that by Article 23, of the existing Constitution of Louis- 
iana, that of 1852, each house of the legislature was empow- 
ered to " punish by imprisonment any person, not a member, for 
disrespectful and disorderly behavior in its presence, or for ob- 
structing any of its proceedings^^ such imprisonment not to " ex- 
ceed ten days for each offence." 

It is probable, that, in the outset, the Convention deemed 
itself to be substantially within this constitutional provision, 
though a newspaper libel could hardly be considered disrespect- 
ful or disorderly behavior in its presence or as obstructing any of 
its proceedings. It accordingly commenced operations with a 
vigor calculated to impress the unthinking with high ideas of its 
power. But at this stage of the case, and before any attempt 
was made to imprison the culprit editor under the order speci- 
fied, a second order from General Banks released him from cus- 
tody, and he was not further molested. Thus, this dignified 
body, with the full purpose of humbling the offending editor, 



PRIVILEGES OP MEMBERS OF CONVENTIONS. 429 

after putting in operation all the machinery in its possession by 
which it could hope to accomplish that end, retired from the un- 
equaj conflict, ending, in truth, where it ought to have begun, 
by calling upon the government to do for it what it could not 
accomplish by its own officers. But in these proceedings it 
was not only chargeable with imbecility ; it was guilty of 
usurpation of unusual and dangerous powers. How far the ex- 
ceptional condition of the State at the time might have pal- 
liated that usurpation, had not circumstances shown it to be 
unnecessary and foolish, need not be definitely settled. As the 
grasp of the Convention upon its pretended powers was not 
secure enough to bring success, but it was found necessary to 
call upon the existing government to aid in maintaining its dig- 
nity, it is demonstrated beyond question that it could do its 
appointed work without those powers, namely, by calling upon 
the public authorities for aid whenever the pow^ers inherent in 
all public assemblies were found insufficient to protect it from 
insult or to expedite its business.^ 

§ 471. It may be useful now to append a few remarks in 
relation to the question of privileges, as applicable to Con- 
ventions. Are the members of a Convention, or is the body 
itself, entitled to claim the immunities usually accorded to the 
legislature, and to its individual members, such as exemption 
from legal process, from service as jurors or witnesses, or from 
legal question tending to impair the freedom of their debates 
and proceedings ? It is doubtless essential, in order to enable 

1 For an excellent discussion of the proceedings of this Convention in this 
case, see Speech of Mr. Casabat, a member of the body, in Deh. La. Conv., 
1864, p. 509. 

As to the general question discussed in the text, it is proper to remark that in 
all the Conventions thus far held in the United States, some one hundred and 
fifty in number, I find no instance of the exercise of the power of arresting or 
imprisoning persons not members of those bodies, except in those whose charac- 
ter and proceedings were such as to rank them as Revolutionary Conventions. 
To this remark the instance in the Louisiana Convention of 1864, as I regard 
that body, is no exception. During the Revolution, the Conventions which 
framed the first Constitutions of their respective States, were nearly all of them 
of the revolutionary stamp ; and in many of those which clearly were such, the 
power in question was exercised, and, so far as I am aware, in no others. For 
an instance of this, see the proceedings of the New Jersey Convention of 1776, 
concerning the arrest and imprisonment of the royal governor, William Frank- 
lin, in Jour. N. J. Conv., 1776, pp. 10-13, 22, 23. 



430 PRIVILEGES OF MEMBERS OF CONVENTIONS. 

a legislature, or any other public assembly, to accomplish the 
work assigned to it, that its members should not be prevented 
or withdrawn from their attendance, by any causes of a. less 
important character ; but that, for a certain time at least, they 
should be excused from obeying any other call, not so imme- 
diately necessary for the great services of the nation ; they must 
also be always protected in the exercise of the rights of speech, 
debate and determination in reference to all subjects upon which 
they may be rightfully called to deliberate and act ; it is abso- 
lutely necessary, finally, that the aggregate body should be ex- 
empted from such interferences or annoyances as would tend to 
impair its collective authority or usefulness.^ The immunities 
thus indispensable are, in the case of legislatures, commonly 
secured by rules and maxims or constitutional provisions, and 
are styled privileges, as being rights or exemptions appertaining 
to their office, to which citizens generally are not entitled. 

§ 472. Out of the catalogue of privileges above given, it is 
not easy to select one with which a Convention or its members 
could safely dispense. It ought never to be, as without them it 
would frequently be, in the power of the enemies of reform to 
prevent or postpone it by arresting, harassing or intimidating 
the delegates to the body by whom it is to be accomplished. 
But the real difficulty is, not to determine whether or not a Con- 
vention ought to enjoy those privileges, but to ascertain how 
and by whom they should be protected and enforced. 

Upon this point, there is, in my judgment, but one position 
that can be maintained with safety, and that is, that Conven- 
tions must stand upon the same footing with jurors and wit- 
nesses; they must look to the law of the land and to its ap- 
pointed administrators, and not to their own powers, for protec- 
tion in their office. If a juror or a witness, going ox. returning, 
is harassed by arrest, he does not himself or with his profes- 
sional associates cite the offending officer before him for pun- 
ishment, but sues out a writ of Habeas Corpus, and on pleading 
his privilege procures his discharge. Beside this, for personal 
indignity or injury, he may appeal to the laws for pecuniary 
compensation. The same course is doubtless open to any 
member of a Convention, and it furnishes for all ordinary cases 
a practical and sufficient remedy. Behind those bodies stands 
1 Cushing's Law and Pract. of Legisl. Assemh.^ §§ 529, 530, 531. 



PRIVILEGES OF MEMBERS OF CONVENTIONS. 431 

continually, armed in full panoply, the state, with all its ad- 
ministrative and remedial agencies, ready to protect and defend 
them. If experience, however, should at any time show that 
Conventions could not rely for defence upon laws and mag- 
istrates alone, the proper remedy would be an application to the 
legislature for an increase of powers. But such a necessity is 
not likely to arise. Except, perhaps, in revolutionary times, 
interference with the privileges of Conventions need not be 
apprehended. The business that engages them is not one that 
appeals very strongly to the passions of men. If a member is 
occasionally arrested or libelled, it is absurd to pretend that our 
legal tribunals are not competent to give adequate and sea- 
sonable redress. And if the times be revolutionary, it is better 
that such an assembly as a Convention should be armed only 
with the weapons of its ordinary warfare — which are the 
weapons of peace — since experience has abundantly shown 
that, having others, it is quite as likely to wield them in the 
interests of revolution, as any other body in the State. 

§ 473. The only remaining point proposed for discussion in 
this chapter relates to the extent of the power of Conventions, 
of their own motion, to prolong or to perpetuate their existence. 

Upon the general question, I shall only observe, that when 
the Act of Assembly under which a Convention meets, ex- 
pressly or by reasonable implication prescribes the work expected 
of it, as, " to revise and propose amendments to the Constitu- 
tion," or simply "to meet in Convention," where the purpose 
of the meeting has been clearly niade known by preliminary 
discussion, when that work has been accomplished, the body 
eo instanti hecomes functus officio ; and has no power to prolong 
its existence a moment, for any purpose whatever. The only 
difficulty is to determine when its work has been accomplished. 
Where these bodies have confined themselves to the limited 
sphere of duty in foregoing sections asserted to be alone proper 
for them, that of recommending to their constituents changes 
in the fundamental law, the question I am considering could 
not arise. It is only when, through the ignorance or negligence 
of the legislatures calling them, no provision has been made for 
taking the sense of the people upon the fruit of their labors, or 
for putting it in operation, and it is therefore deemed necessary 
for the Conventions themselves to perform that duty, that any 



432 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 

reason could be discovered for prolonging an existence which 
properly ends when its constitutional function has been dis- 
charged. In a few cases, accordingly, where such has been the 
state of facts, Conventions, after completing their scheme of 
fundamental modifications, have adjourned to meet at a future 
day, with a view either to amend it, should the popular sense 
have pronounced against it in any part, or to put it in opera- 
tion, if it should have met with general approval. 

Thus, the New Hampshire Convention of 1781, and the 
Pennsylvania Convention of 1789, having framed their Consti- 
tutions, adjourned, with a view to collect the public sense in 
regard to their work, and at a subsequent session adopted and 
put it in operation.. The Kentucky Convention of 1849, on 
the other hand, adjourned to a future day, in order that, in the 
interim, the people might vote upon the question of its adop- 
tion or rejection, and, on its being adopted, reassembled and put 
it in operation. 

What were the terms of the Act calling the New Hampshire 
Convention of 1781, I am not informed. That calling the 
Pennsylvania Convention of 1789, was to the effect that that 
body should review, and, if it should see occasion, alter and 
amend, the Constitution of the State ; and that " it would be 
expedient, just, and reasonable, that the Convention should pub- 
lish their amendments and alterations for the consideration of 
the people, and adjourn at least four months previous to confirma- 
tion P 

The Act calling the Kentucky Convention of 1849 indicated 
the duty and powers of that body only by enacting " that a 
Convention, /or the purpose of readopting", amending, or chang- 
ing the Constitution of the State, be called," &c. 

From these provisions, it was evidently the' intention of the 
legislatures of Pennsylvania and Kentucky that the Conven- 
tions should adopt definitively and put in operation the Consti- 
tutions or parts of Constitutions framed by them. Until that 
work was accomplished, then, they had a right to sit, or, having 
adjourned for a reasonable time and purpose, again to assemble. 
Their work concluded, however, without special authority, I 
conceive, it would be wholly beyond their power to prolong 
their existence a moment, still more to reconvene, after having 
once dispersed. 



POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 433 

§ 474. A case has lately occurred in Louisiana, involving the 
application of these principles, which I do not feel at liberty to 
pass over, although, on account of its connection with the party 
strifes of the day, I would gladly do so, were it not an act of 
cowardice to refuse to discuss a question of transcendent inter- 
est, coming directly vi'ithin the scope of this inquiry, because, 
by discussing it, I might be brought in collision with this party 
or with that. 

The Louisiana Convention of 1864 was called by General 
Banks, in command of the Department of the Gulf, by General 
Order No. 35, dated March 11, 1864. 

The only clause of the Order determining the powers and 
functions of the Convention was the following : — 

" I. An election will be held on Monday, the 28th of March, 
at 9 o'clock, A. M., in each of the election precincts established 
by law in this State, for the choice of delegates to a Conven- 
tion, to he held for the revision and amendment of the Constitu- 
tion of Louisiana" 

In pursuance of this order, delegates were elected, assembled 
on the day named, revised and amended the Constitution of 
Louisiana, submitted the same for adoption or rejection to a 
vote of the people, and on the 25th of July following adjourned. 
It did not, however, adjourn sine die. On the last day of its 
session, by a vote of 62 to 14, it adopted the following resolu- 
tion : — 

" Resolved, That when this Convention adjourns, it shall be 
at the call of the president, whose duty it shall be to reconvoke 
the Convention for any cause, or, in case the Constitution should 
not be ratified, for the purpose of taking such measures as may 
be necessary for the formation of a civil government for the 
State of Louisiana. He shall also, in that case, call upon the 
proper officers of the State to cause elections to be held to fill 
any vacancies that may exist in the Convention, in parishes 
where the same may be practicable." ^ 

When the Convention adjourned, accordingly, it " adjourned 
subject to the call of the president, in pursuance of the resolu- 
tions this day adopted." ^ 

After its adjournment, the Constitution framed by it was 

1 Journal La. Conv., 1864, p. 170. 

2 Id. p. 171. 
28 



434 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 

submitted, as required by Article 152, to a vote of " the good 
people " of the State, and adopted, 

§ 475. By the Constitution thus framed, the State of Louisi- 
ana has been governed, so far as she has had a civil govern- 
ment at all, from the time of its adoption on the first Monday 
of September, 1864, up to the present time. 

Early in the month of July, 1866, however, an attempt was 
made to reassemble the Convention of 1864. The objects to 
be effected by it, as declared by the proclamation of the person 
assuming to call it, referred to below, were to revise the Consti- 
tution, and to take measures for the ratification of an amend- 
ment to the Constitution of the United States, proposed to the 
State legislatures by the 39th Congress.^ 

To this end, the president of the Convention was requested 
by a caucus of its members, to call that body together in pursu- 
ance of the resolution above recited, but refused so to do. The 
caucus thereupon declared the office of president vacant, and 
elected Judge R. K. Howell president joro tem.^ by whom a call 
was issued requiring the delegates to reconvene in Convention 
on the 30th of July following. There being, from various causes, 
also a large number of vacancies in the Convention, the Gov- 
ernor of the State, J. Madison Wells, in alleged pursuance of 
the same resolution, issued his proclamation, requiring the 
proper officers of the State to issue writs of election for dele- 
gates in unrepresented parishes. The Convention accordingly 
assembled at New Orleans on the day appointed, but was dis- 
persed by a mob, led by the police of the city, with circum- 
stances of atrocity unexampled in the history of our country, 
except amidst the passions of actual war.^ 

§ 476. Upon these facts the question arises. Was the body, 
which met at New Orleans on the 30th of July, 1866, legally a 
continuation of the Convention of 1864 ? 

In my judgment, it was not. 

Looking at the resolution of the Convention, it is clear that 
no authority to call the body again together was derived from 

1 Had the latter been the only object of the reconvocation of the Conven- 
tion, it would have been alone sufficient to stamp it as illegal. See ante, 
§ 447. 

2 For the official proceedings culminating in the reassembling of the Conven- 
tion, see post, Appendix E. 



POWER OP CONVENTIONS TO PROLONG THEIR EXISTENCE. 435 

that part of it which empowered the president " to reconvoke the 
Convention .... in case the Constitution should not be rati- 
fied," for it was ratified. If the body was legally reconvoked, 
it was under that clause of the resolution which declared it to 
be the duty of the president to reconvoke " the Convention for 
any causeP 

Now, in reference to this clause, — 

1. Supposing that it authorized the president of the Conven- 
tion, at his discretion, to call that body together at any future 
time, the trust was personal and official, and could not be dis- 
charged by another, even if the president was unable or un- 
willing himself to discharge it. In fact, however, the president 
exercised the trust — the discretion committed to him — for, on 
application, he refused to reconvoke the body. 

2. But, admitting that the trust might, under some circum- 
stances, be shifted to, or assumed by, another, a rightful succes- 
sor to it must have been the legal appointee of the Convention ; 
and to fulfil that condition, the Convention must first have been 
legally reconvoked. But, clearly, in its dispersed and dormant 
condition, neither the body itself nor any caucus of its mem- 
bers could do an act which was necessary as a precedent condi- 
tion to its reconvocation. In other words, the appointment of 
a president -pro tern, by a caucus of the delegates, was but the 
act of individuals, and of no validity whatever under the reso- 
lution. Who composed the caucus? Conceding that all the 
delegates were present, — which was not the fact, — by what 
authority did they sit in caucus ? When a Convention acts, it 
does so, not by a caucus, but by its whole body. That it could 
not so act is a proof that, except as individuals, its members 
could not act at all. 

§ 477. 3. But a stronger argument against the validity of 
the act of reconvocation is found in the terms of the clause of 
the resolution in question. Its words are, — " Whose duty it 
shall be to reconvoke the Convention /or any cause." 

Within what limits was this power to be exercised — limits, 
that is, as to time and occasion? Was the president of the 
Convention to hold this most important prerogative during life ? 
Might he call the body together, as he might his hounds, for 
ordinary purposes of party or of administration, or must the 
extraordinary assembly be reserved for extraordinary occasions ? 



436 POWEE OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 

When and for what the call should be made, was left entirely 
to the discretion of the president, a single person, no longer 
even an officer, unless indeed the Convention be regarded as 
sitting en 'permanence. Such a discretion defines precisely that 
which, under our Constitutions, is lodged with our General 
Assemblies — a legislative discretion. That a Convention in 
the last stages of dissolution, having completed its work, should 
attempt to give such a discretion, was not only unconstitutional, 
it was impudent. Imagine a conflict between the General As- 
sembly and the president of the Convention, on the question of 
calling that body again together. The General Assembly passes 
an Act requiring the Convention to reassemble. The president 
issues his proclamation forbidding it to convene. The delegates 
obey the latter, for, by the terms of the resolution, the discretion 
to call them was lodged with the president. Or, the General 
Assembly, twenty-five or fifty years after the adjournment, re- 
solves to call a new Convention. The president deems the old 
one an abler or a more available body, and issues his order 
reconvOking it. Which is the legal Convention ? Is the air 
peopled with defunct Conventions, waiting the magic word from 
their defunct presidents, to clothe themselves again in flesh to 
rule us? Yet such may certainly be the case, unless when its 
function is discharged the Convention dies — if, at its decease, it 
can lodge with its presiding officer, for life, a discretion to re- 
vive the body at his own pleasure and for his own purposes. 

§ 478. I have thus far reasoned upon the case as though the 
Louisiana Convention of 1864, sought to be reassembled, was 
itself valid as a Constitutional Convention. Regarding it, on 
the contrary, as a Revolutionary Convention, according to the 
view taken of it in a preceding chapter,^ the aspects of the case 
would be materially different, and they would vary again accord- 
ingly as the Convention met in a State destitute of a regular 
government — during a reign of force — or in a State under a 
government established and recognized. 

What a revolutionary body may or may not do, it would 
be impossible to define. Equally impossible would it be to 
determine what might or might not be done against it, where 
force was the only law. Appealing only to force itself, it would 
not lie in the mouths of its members or adherents to complain, 
1 See ante, §§ 250-259. 



POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 437 

SO long as the force which overpowered it was not exercised 
with inhumanity. Whoever thought its assembling or its con- 
duct wrongful, would be at liberty to suppress it, using such 
force for that purpose as might be necessary. A fortiori, if it 
had been called by the President of the United States, acting, 
not as the administrator of the law, but as the director of the 
public force, limited only by his own discretion, — in other 
words, as the engineer of that which is but the negation of all 
law, that officer might undoubtedly disperse it at will. Might 
he not do as he would with his own ? 

On the other hand, if, on the 30th of July, 1866, the State of 
Louisiana was to be considered, in law, as restored to her con- 
stitutional relations to the Union, under a Constitution and 
government sanctioned by her own people as well as by the 
United States, then the attempt to reassemble the Convention 
of 1864 was of the same character as it would have been had 
that body been originally legitimate, and the State never in a 
revolutionary condition. On that hypothesis, the reassembed 
Convention was a public meeting of citizens, certainly having 
a right peaceably to assemble, claiming besides to be charged 
with official functions, and, whatever its purposes, subject only 
to be dealt with according to its legal character and deserts, 
by the State authorities. In such a case, the President of the 
United States could rightfully interfere with the body only when 
called upon by those authorities so to do, pursuant to the Acts 
of Congress of February 28, 1795, and March 3, 1807, which 
authorize him " in case of an insurrection in any State against 
the government thereof," to call out the militia, or to make use 
of the regular army to suppress the same, but only " on appli- 
cation of the legislature of such State, or of the executive, when 
the legislature cannot be convened.''^ 

Inasmuch, therefore, as the legislature of Louisitina did not 
apply to the President for aid in suppressing the unlawful Con- 
vention of July 29, 1866, and as the executive of the State 
favored the Convention, if its suppression was effected by the 
authority or advice of the President of the United States, as 
has been charged, the interference of that officer was, in my 
judgment, unconstitutional.^ 

1 Under a resolution substantially the same as that passed by the Louisiana 
Convention of 1864, the North Carolina Convention of 1865 reassembled in the 



438 POWER OP CONVENTIONS TO PROLONG THEIR EXISTENCE. 

following year, and proposed amendments to the State Constitution, which being 
submitted to a vote of the people were rejected. Thus the question of the 
validity of the act of reconvocation as well as of the reassembled body itself, 
was, in North Carolina, happily left, as a purely legal question, to be decided 
by the courts, instead of being made, as seems to have been done in New Or- 
leans, the pretext for wholesale proscription and murder by a mob who were 
opposed to the objects of the Convention. The reassembled Conventions of 
those States were either Constitutional Conventions or Spontaneous Conven- 
tions of citizens In their private capacity. In either character they were entitled 
to the protection of the laws, and, If charged with crime, to be tried and pun- 
ished by the laws. 



CHAPTER VII. 

§ 479. An important part of the duty of a Convention is to 
submit to the sovereign, for its approval or disapproval, the 
propositions of constitutional law which it has matured. 

The duty of submission grows out of the nature of our 
institutions. 

In the American political system, the edifice of government 
rests on the people. Two ideas pervade that system : first, that 
of the absolute right of the people, under God, and, in the 
States, subject to the Federal Constitution, themselves to de- 
termine and to carry into operation the policy, laws, and gov- 
ernment, in all its departments ; and, secondly, that of the sol- 
emn obligation resting on those through whom the people act, 
not only to obey their will, but to keep themselves constantly in 
a condition of perfect responsibility to them, save in the single 
case where a discretion has been in terms given them. In 
other words, if the safety of the State, as constituted in Amer- 
ica, requires, as it certainly does, that the people should possess 
a curb upon their agents, it requires no less that those agents 
should recognize that curb as existing, and facilitate its appli- 
cation. We have seen that our Conventions are in substance 
but mere committees, destitute of the power of self-direction, 
and by their organization as little fitted as in theory designed for 
independent or definitive action. If, therefore, in the face of 
these principles, the people were so far to forget what is essen- 
tial to the safety of their institutions as to be willing to throw 
the State, without check, into irresponsible hands, the Conven- 
tion is the last body to which should be committed so grave a 
trust. This follows from the fact, if from no other, that it con- 
sists of but a single chamber. But the Convention, as we have 
seen, is of revolutionary parentage ; it was originally the child 
of illegality, and has come into the constitutional household by 
adoption, and hence has been ever the subject, in all questions 



440 SUBMISSION OF CONSTITUTIONS. 

of power and competence, of fatal misconceptions. It is, of all 
our institutions, the one through which sedition and revolution 
would most naturally seek to make their approaches. Instead 
of deserving confidence, such an institution merits distrust and 
repression. In a word, to apply the principles above announced, 
it is the interest of the Commonwealth that no discretion liable 
to be abused should be left to a Convention, without careful pro- 
vision for repressing and correcting its abuses ; or, viewed on 
the side of the Convention, it is for such a body a sacred duty, 
in no case unbidden to assume to exercise a discretion, upon 
an abuse of which there is not reserved to the people an instant 
and effectual check. Such a check (and it is practically the 
only one possible) is involved in the submission of the fruit of 
its labors to the judgment of those for whom they act — the 
people. 

§ 480. The general propriety and necessity of submission being 
conceded, there are three cases in which doubts may arise as to 
the duty of Conventions in that regard. It may be useful to 
dwell a few moments upon each of them. 

The first case is, where both the Constitution and the Act of 
Assembly, under which the Convention met, are silent in respect 
of submission : 

The second, where, by one or both of those instruments, sub- 
mission is expressly required ; specific directions, perhaps, being 
also, at the same time, given as to the mode : 

The third, where, in the Act calling the Convention, submis- 
sion is expressly dispensed with. 

§ 481. I. Where neither the Convention Act nor the Consti- 
tution requires the Convention to submit its work to the people, 
the duty of that body to do so, is, nevertheless, upon sound 
principles, in my judgment, perfectly clear. Obviously, a Con- 
vention is bound to regard itself as limited to the exercise of 
such powers as are expressly given to it, or as are necessary to 
the exercise of such as are expressly given. But, in the case 
supposed, no express power relating to submission is contained 
in its commission. Both the duty and power of the body are 
then to be determined by the general scope of that commission, 
so interpreted as to harmonize with the spirit of the institutions 
of the country, and to assure to them, in the greatest possible 
degree, exemption from the evils and dangers to which they are 



SUBMISSION OF CONSTITUTIONS. 441 

liable. Under such a rule, the question whether submission is 
or is not a duty, is one mainly of presumptions. Is it probably 
the safer constitutional precedent to establish, that a body, con- 
sisting of a single chamber, and charged with legislative duties 
of supreme importance, may shape their work as their own in- 
terests or prejudices may dictate, and then put it into practical 
operation, wholly without responsibility to the people ; or, that 
the measures they may mature shall be regarded as advisory 
merely, as having no force or validity beyond that of simple 
recommendations, until ratified by those for whom they act ? 
This is the whole subject in a nutshell, and it is impossible for 
a moment to doubt which is the safer, and, therefore, the only 
proper course. Conventions are bound to give to the people an 
opportunity to negative inexpedient or dangerous constitutional 
provisions. They may know their members to be honest, and 
may believe them to be wise, and their enactments salutary or 
even necessary ; but they will not fail to recognize the two car- 
dinal truths, — first, that however virtuous or wise men may be, 
they are liable to fall into errors, which may entail upon the 
State no less disaster than would treason itself; and, secondly, 
that the action they may take in any particular, whether right or 
wrong, is likely to become a precedent for succeeding Conven- 
tions. 

§ 482. II. The second case, which has already formed the 
subject of consideration in a previous chapter, in another rela- 
tion, presents less difficulty ; that is, where submission of the 
Constitution to the people is expressly required by law. If the 
Constitution contained provisions to that effect, probably no one 
would be hardy enough to maintain that there could be any 
alternative to obedience but revolution. And if it prescribed 
special modes or forms, it is presumed no power would be 
thought competent to dispense with a punctilious conformity 
to its terms.i jj; jg Q^\y [j^ relation to Acts of the legislature 
that question could arise. Would a Convention be bound by 
the Act under which it assembled, without regard to its own 
views of propriety or necessity, to submit the product of its 
deliberations to the people, if the Act required it ? As this 

i In the Ohio Constitution of 1851, and in the West Virginia Constitution of 
1863, provisions are inserted declaring amendments to those instruments to be 
of no force unless submitted to the people. 



442 SUBMISSION OF CONSTITUTIONS. 

question has already been the subject of consideration, to some 
extent, in a preceding chapter,^ it is necessary here only to indi- 
cate briefly the arguments which were there adduced. 

§ 483. The Act of Assembly under which a Convention meets, 
is its charter. "Whatever, not inconsistent with the Constitution 
or the principles of the Convention system, the former prescribes, 
the latter must do. It is the law, passed by the competent 
law-making power, within the limits that bound its jurisdiction. 
What is a Convention, that it should assume to be exempt 
from obedience to that department of the government which is 
charged with higher sovereign attributes — is more nearly sov- 
ereign — than any other in it ? Does it claim to be itself above 
the legislature ? Let it show its warrant for a claim so exorbi- 
tant, for upon it must rest the burden of proving what contra- 
dicts all political analogies, and the first principles of constitu- 
tional government. It cannot find that warrant in the mandate 
of the power by whose ^a^ it came into being, for, by hypothesis, 
that is expressly to the contrary. It cannot find it in claims set 
up by Conventions, and allowed by the people, in the best days 
of the Republic, for, with scarcely an exception, during that 
happy period, when party conflict had not succeeded in pervert- 
ing our statesmen into mere politicians, it was universally con- 
ceded, that the Convention was the child of the law, and, as 
such, bound to obey literally its requirements. Nor can a war- 
rant for the claim be found in the principles which preside over 
the genesis and healthy growth of free communities, for those 
principles, as we have seen above, require Conventions to rank 
themselves as the servants, not the masters of the people ; and 
when the will of the people is known, to conform themselves 
scrupulously to it ; but when it is unknown, to presume that to 
be required of them which most conduces to the safety of the 
Commonwealth. 

§ 484. III. The third case, — that in which submission is ex- 
pressly dispensed with, and the Convention authorized or required 
to put the Constitution into operation without referring it to the 
people, — would seem to present less occasion for doubt. The 
case has not very frequently arisen, but, so far as I am aware. 
Conventions have never questioned, either the competence of 
the legislature so to provide, or their own right and duty to obey. 
1 See ante, §§410-417. 



SUBMISSION OF CONSTITUTIONS. 443 

It is only when our General Assemblies have imposed restric- 
tions upon them, that Conventions have been disinclined to 
recognize their right to command. Precedents of the exercise 
of such a power have, as we shall soon see, arisen, sometimes 
with and sometimes without special legislative authorization. 
Perhaps, therefore, the question whether such a body can right- 
fully obey a command of the legislature requiring it to act defin- 
itively, ought not to be regarded as an open one. And it may 
be, that no very serious exception could be taken on principle 
to an Act containing such a provision, provided the precaution 
had been employed to take upon it in advance the sense of 
the people. This might be accomplished, in two ways : first, 
by proposing the Convention Act in one legislature, and laying 
it over to be finally acted on by a succeeding one, in the mean 
time publishing it and calling to it the public attention ; or, sec- 
ondly, by actually submitting to a vote of the people the ques- 
tion of calling a Convention. Of these two modes, either of 
which would fulfil the conditions requisite for the public safety, 
the second is unquestionably the preferable one, and it has the 
high sanction of the New York Council of Revision, in 1820, 
of which Governor Clinton, Chancellor Kent, and the judges of 
the Supreme Court, were members. The majority of this Coun- 
cil, deeming it " most accordant with the performance of the 
great trust committed to the representative powers, under the 
Constitution, that the question of a general revision of it should 
be submitted to the people, in the first instance, to determine 
whether a Convention ought to be convened," vetoed a bill pro- 
viding for a call of a Convention, which had been passed by the 
legislature, on the single ground that it did not propose to sub- 
mit the question to the people.' The same principles that govern 
the call of a Convention, ought, evidently, to apply to a grant 
to such a body of unusual powers in the Act by which it is 
called. It does not admit of a doubt that the safest and wisest 
course, in one case no less than in the other, would be to submit 
the questions referred to to the determination of the people. 

§ 485. But, suppose there has been no submission to the peo- 
ple, no means used to collect their opinion upon the question, 
aside from precedents, would the legislature then be competent 
to authorize definitive action by a Convention, or the latter be 
empowered to take it ? The answer must be in the negative. 
1 For this veto, see post, Appendix B. 



444 SUBMISSION OF CONSTITUTIONS. 

1. When a legislature calls a Convention, without the spe- 
cial authorization of the Constitution, it steps to the very verge 
of its power. It does an act which, as it can show no express 
warrant for it, it can justify only on the ground that it was a 
necessity, and that it was itself the only department of the gov- 
ernment clearly not incompetent to do it. But an Act which 
can be justified only by necessity, must conform to that neces- 
sity in its character and limitations ; so far as it goes beyond it, 
the Act is unnecessary, and, therefore, unjustifiable. If the call- 
ing of a Convention is necessary, it certainly is not necessary to 
call it in such a way as to make of it a despot — to let it loose 
upon the community without check against the assumption of 
dangerous powers. A legislature may always prescribe that 
a Convention shall content itself with proposing, and that to its 
propositions there shall be communicated the force of law only 
by the fiat of the people. What is practicable under such condi- 
tions, is to be taken as the measure of its duty, and it is as binding 
on that body as though it had been expressly embodied in the 
Constitution. 

§ 486. 2. If, on the other hand, the Constitution, like most of 
our later ones, were to authorize the legislature, in general terms, 
" to call a Convention," and, if in doing so, that body were to 
insert in its Act a provision permitting the latter to frame and 
put in force a Constitution, without submission, would the legis- 
lature exceed its power, or would the Convention be warranted 
in availing itself of the permission ? Laying the precedents 
referred to out of sight, the answer must still be in the negative, 
and for substantially the reasons above given. Although, from 
the generality of the constitutional provision, power might prop- 
erly be inferred in calling a Convention, to exhaust the catego- 
ries of time, place, and mode of assembling, organizing, and 
proceeding, as well as to fill out the outlines of an expedient 
limitation of its powers, with a view to the safety of the state 
and the facilitation of its business — such details being author- 
ized as fairly implied in the general grant of power to call the 
Convention — nothing is authorized which is not thus implied, 
or which is opposed to the spirit of republican institutions. 

K I have not misconceived, then, the considerations bearing 
upon the question, it is the duty of Conventions, in all cases, 
not even excepting that, perhaps, in which they are authorized 



PRECEDENTS RELATING TO SUBMISSION. 445 

to act definitively, to submit the Constitutions they frame to 
the people ; certainly to do so, whenever submission is not ex- 
pressly dispensed with by the Constitution, or by the Convention 
Act. 

§ 487. Let us now see to what extent the precedents have 
conformed to what I have announced as the theoretical princi- 
ples relating to the submission of Constitutions ; that is, of the 
Conventions which, since the foundation of our government, 
have been concerned in framing Constitutions, or parts of Con- 
stitutions, how many have, and how many have not, submitted 
them to the people? 

I have, in this work, generally, for the sake of completeness 
of view, reckoned as Conventions all bodies which have framed 
or ratified Constitutions or parts of Constitutions, either for the 
Union, or for States, now members of the Union, as well as a 
few which have met for that purpose, but have failed to effect 
it. As thus defined, the list of those bodies thus far held in 
the United States, comprises one hundred and fifty-two Con- 
ventions.i 

From this list, for our present purpose, must, of course, be 
struck out, first, those Conventions which have been called sim- 
ply to ratify propositions made by other Conventions or by bodies 
having functions analogous to those of Conventions, twenty-eight 
in number; 2 and, secondly, such as have proved abortive — hav- 
ing met and adjourned without maturing any amendments to 
the fundamental code — six in number.^ There would then re- 
main one hundred and eighteen Conventions. Of these, seventy- 

1 See post. Appendix A., for a full exhibit of these Conventions, in which are 
distinguished those which did, from those which did not, submit their work to 
the people. 

2 They were the following State Conventions, held, first, to ratify the Federal 
Constitution, viz. : those of Pennsylvania, Delaware, New Jersey, and Georgia, 
1787 ; of New Hampshire, South Carolina, Virginia, North Carolina, New York, 
Massachusetts, Connecticut, and Maryland, 1788; that of North Carolina (the 
second), 1789 ; that of Rhode Island, 1790; and that of Vermont, 1791 ; — sec- 
ond, to ratify State Constitutions, or parts of Constitutions, either formed by 
previous Conventions, or dictated by Congress, viz. : those of Vermont, 1 786, 
179S, 1822, 1828, 1836, 1843, 1850, and 1857; those of Georgia, 1789 (two 
Conventions) ; those of Michigan, 1836 (two Conventions) ; and that of Iowa, 
1846. 

3 These were the Councils of Censors of Pennsylvania, 1 783, and of Ver- 
mont, 1799, 1806, 1813, and 1862; and the Rhode Island Convention, of 1834. 



446 PRECEDENTS RELATING TO SUBMISSION. 

eight have submitted the fruit of their labors to the people,^ and 
forty have not.^ 

§ 488. From this exhibit, it is evident that the prevailing sen- 
timent of the country, from the earliest times, has favored the 
submission of Constitutions to the people. That such has been 
the general feeling is confirmed by an examination into the 
political situation and opinions of our fathers, at different times 
during our history, and into the particular circumstances attend- 
ing those cases in virhich submission has not been made, to 
those of which most directly bearing on the point under discus- 
sion, a short space will be devoted. 

The science of politics, as specially adapted to our system of 
republics, scarcely existed at the time that system originated. 
American statesmen were doubtless well acquainted with the 
principles of freedom as developed in English institutions, and 
were thus, in a general way, prepared for the new development 
of them about to manifest itself in America. But the task of 

1 The names and dates of the submitting Conventions are as follows : — 

1. Such as framed first Constitutions : — Those of the United States, 1775- 
81; Massachusetts, 1778; Kentucky, 1792; Tennessee, 1796; Ohio, 1802; Loui- 
siana, 1812; Indiana, 1816; Mississippi, 1817; Illinois, 1818; Alabama, 1819; 
Maine, 1819; Missouri, 1820; Michigan, 1835 ; Arkansas, 1836 ; Florida, 1839 ; 
Iowa, 1844; Texas, 1845; Wisconsin, 1846; California, 1849; Kansas, 1855, 
1857, and 1859; Minnesota and Oregon, 1857; West Virginia, 1863; and Ne- 
vada, 1863 and 1864. 

2. Such as were revising Conventions: — Those of Massachusetts, 1779, 1820, 
1853; New Hampshire, 1778, 1781, 1791, 1850; Vermont, 1785, 1792, 1820, 
1827, 1834, 1841, 1848, 1855; United States, 1787; Georgia, 1788, 1838; Con- 
necticut, 1818 ; New York, 1821, 1846 ; Rhode Island, 1824, 1841 (two Con- 
ventions), 1842; Virginia, 1829, 1850, 1861; Tennessee, 1834, 1861, 1865; 
North Carolina, 1835; Pennsylvania, 1837; New Jersey, 1844; Louisiana, 
1844, 1852, 1864; Missouri, 1845, 1865; Wisconsin, 1847; Illinois, 1847, 1862; 
Kentucky, 1849; Ohio, Indiana, and Michigan, 1850; Maryland, 1850, 1864; 
Delaware, 1852; Iowa, 1857 ; and Texas, 1861. 

'^ The non-submitting Conventions are the following: — 

1. Such as framed first Constitutions: — That of New Hampshire, 1775; 
those of South Carolina, Virginia, New Jersey, Delaware, Pennsylvania, North 
Carolina, Georgia, New York, and Maryland, 1776; and that of Vermont, 1777. 

2. Such as were revising Conventions: — Those of South Carolina, 1777, 
1790, 1861, 1865; Pennsylvania, 1789; Delaware, 1792, 1831 ; Georgia, 1795, 
1798, 1861, 1865; Kentucky, 1799; New York, 1801; Mississippi, 1832, 1861, 
1865; Louisiana, 1861; Missouri, 1861; Arkansas, 1861, 1864; North Caro- 
lina, 1861, 1865; Alabama, 1861, 1865; Florida, 1861, 1865; Virginia, 1861, 
>(Reconstruction), 1864 ; and Texas, 1866. 



PEECEDENTS RELATING TO SUBMISSION. 447 

the statesman then was to apply old principles to a wholly new 
situation — always a work of difficulty, in which much must be 
trusted to time and experience. Of all the prominent statesmen 
of the Revolution, John Adams seemed best and earliest to fore- 
cast the form our institutions must assume, as well as their 
foundation and peculiar spirit. He saw that a republic alone 
would satisfy the wishes or harmonize with the genius of our 
people, and he was wise enough and fortunate enough to point 
out seasonably and with great precision the method in which 
the edifice of government, in the several States, must be erected. 
He was convinced it must be founded upon the people, by the 
people, and for the people. " I had looked," he says, " into the 
ancient and modern confederacies for examples, but they all ap- 
peared to me to have been huddled up in a hurry by a few 
chiefs. But we had a people of more intelligence, curiosity, and 
enterprise, who must be all consulted ; and we must realize the 
theories of the wisest writers, and invite the people to erect the 

whole building upon the broadest foundations This 

could only be done by Conventions of representatives chosen by 
the people in the several colonies, in the most exact proportions. 
It was my opinion that Congress ought now " (1775) " to rec- 
ommend to the people of every colony to call such Conventions 
immediately, and set up governments of their own, under their 
own authority; for the people were the source of all authority, 
and original of all power." ^ 

§ 489. These views, so mature for that early day, were, in 
most respects, adopted and carried into effect by the several 
colonies. As we saw in a former chapter, a scheme of a Con- 
stitution, suitable, in the author's opinion, for the incipient 
States, was prepared and extensively circulated by Mr. Adams, 
dm'ing the winter and spring preceding the general framing of 
Constitutions that took place in 1776. To this fact is doubtless 
due much of the family likeness apparent in the Constitutions 
that afterwards appeared. But circumstances prevented, in 
nearly all the colonies, a strict conformity to the spirit of Mr. 
Adams' recommendation ; though they called Conventions, 
they did not always consult the people in relation to the Con- 
stitutions they matured. In many of these colonies no submis- 
sion was made to the people, because it was not, by the friends 
1 Adams' Works, Vol. III. p. 16. 



448 PRECEDENTS EELATING TO SUBMISSION. 

of the Revolution, deemed safe to submit, though the propriety 
of such a step, in general, seems not to have been denied. 
While the Convention of New York was in session, the enemy 
were actually, in large force, invading that and the adjoining 
State of Vermont, whose Convention was also in session about 
the same time. In those States, therefore, for that reason, it 
was thought to be perilous to attempt to take upon their re- 
spective Constitutions a vote of the people. Not only was 
there danger from the public enemy, but the enemy within was, 
in both States, numerous, and, in organizing the new govern- 
ments, might occasion serious embarrassment, if their establish- 
ment were made dependent upon an affirmative vote of the 
whole people. Their first Constitutions were, therefore, put in 
operation by Ordinances of their Conventions alone. 

§ 490. This action of their Conventions, however, seems not 
to have met with entire approval, at least in Vermont, whose 
people were not satisfied that a Constitution thus adopted pos- 
sessed the force of law. As we have seen, accordingly, in a 
previous chapter, the General Assembly of that State endeav- 
ored, by two separate Acts, passed in different years, to impart 
to their fundamental law the validity which it was supposed to 
lack. This incident shows two things : first, that a very general 
distrust, founded on a considerable knowledge of safe political 
principles, prevailed in relation to the validity of the Constitu- 
tion ; and second, that, at the same time, the views of the peo- 
ple in reference to the relations of the legislature to the Consti- 
tution, under which it assembled, were very immature. The 
first Constitution of New Hampshire had, in like manner, been 
put in operation by the Convention which framed it, though all 
the subsequent revisions of it, of which there have been several, 
have been submitted. The same causes probably operated to 
cause the first Constitution to be withheld from submission, as 
in the States above named ; and they, doubtless, had their influ- 
ence, generally, during the Revolution. The Tory party was 
strong enough in all the States to occasion serious embarrass- 
ment, in case a vote should be taken to determine upon the 
establishment of a new government independent of the crown ; 
and in some of the States it was a matter of doubt whether it 
might not outnumber the friends of independence. Conse- 
quently, of the first Constitutions framed prior to the ratification 



PEECEDENTS RELATING TO SUBMISSION. 449 

of peace with England, none were submitted except that of 
Massachusetts, framed in 1778. This Constitution, however, 
was rejected by the people, and it was not until two years later 
that the leading Northern State was enabled to frame for her- 
self a satisfactory fundamental code. Her first failure, however, 
furnished striking evidence of the existence amongst her people 
of sound practical views of Constitution-making, since that 
failure resulted from dissatisfaction with the mode in which the 
proposed Constitution had been concocted. The Constitution 
of 1778, as stated in a former chapter, was framed by a com- 
mittee of the legislature, appointed in 1777, and on being sub- 
mitted to the people, was, for that rea,son alone, rejected by an 
overwhelming vote — the people of that Commonwealth deem- 
ing the General Court, as the legislature was called, unauthor- 
ized to take the step indicated. Afterwards, a Convention 
was, in a regular and formal manner, called by the General 
Court, by which the Constitution, known as that of 1780, was 
framed. 

§ 491. Two Conventions, classed with non-submitting Con- 
ventions, — those of South Carolina of 1777, and of Pennsyl- 
vania of 1789, — might, perhaps, without impropriety, have 
been classed with those which submitted their work to the peo- 
ple. The legislature of South Carolina, which met in January, 
1777, having been elected with the understanding that it should 
revise the Constitution of 1776, proceeded at its first session to 
perform that duty. Though, by the tenor of its commission, 
that body might have deemed itself authorized to enact its pro- 
posed Constitution at once, without in any manner taking the 
sense of the people in relation to it, it did not do so. It ma- 
tured the instrument, and delayed the formal act of adopting it 
for a whole year, in the mean time publishing it for the consider- 
ation of the people at large.^ " From the general approbation 
of the inhabitants, the new Constitution received," as was be- 
lieved, " all the authority which could have been conferred on 
the proceedings of a Convention expressly delegated for the 
purpose of framing a form of government." ^ And, had the 
body by which it was finally adopted been elected during the 
year following its publication, with a view to its ratification or 

1 Ramsay, History of the Revolution of South Carolina, pp. 128, 129. 

2 Ibid. 

29 



450 PRECEDENTS RELATING TO SUBMISSION. 

rejection, there would have been a substantial submission of it 
to the people. As it was, there was the possibility that a body, 
wedded naturally to its own views of the public necessities, em- 
bodied in its project of a Constitution, would fail accurately, by 
its intercourse with the people, to gather, or would refuse to 
obey, the public will. 

The course of the Pennsylvania Convention was, in respect 
of submission, similar, though, on the whole, more exception- 
able than that of South Carolina. In the resolutions by which 
it was convened, there was a clause declaring it to be, in the 
opinion of the legislature, expedient " that the Convention 
should publish their amendments and alterations for the consid- 
eration of the people, and adjourn at least four months previous 
to confirmation." ^ In obedience to this suggestion, the Con- 
vention matured a Constitution toward the close of February, 
1790, and adjourned over to the 9th of August following, publi- 
cation of the same being in the mean time made in the news- 
papers. On the day last named, the body again assembled, and, 
after a session of twenty-four days, finally adopted the Consti- 
tution of 1790. Thus there was the semblance of taking the 
sense of the people upon the Constitution, and, perhaps, a 
virtual submission to them of that instrument. But, how far it 
fell short of what a submission ought to be, is evident from the 
fact, that after the Convention assembled the second time, it 
spent twenty-four days in reviewing and amending the instru- 
ment upon which the people had been informally consulted. 
What changes the people as a whole desired in the scheme as 
published was not, and could not be, accurately known, nor, 
consequently, whether the delegates obeyed or disobeyed the 
public voice. Both cases, therefore, have been set down as 
those in which Conventions did not submit their work to the 
people. 

§ 492. Of the reasons inducing the Conventions of South 
Carohna, held in 1790 ; those of Delaware in 1792 and 1831 ; 
those of Georgia in 1795 and 1798 ; that of Kentucky in 1799 ; 
and that of Mississippi in 1832, to withhold the Constitutions 
framed by them from submission to the people, I am not ad- 
vised. In relation to the New York Convention of 1801, it 
may be said, that the objects of calling that body were, — first, 
1 Conventions of Pennsylvania, p. 134. 



PBECEDENTS RELATING TO SUBMISSION. 451 

to reduce the number of senators and representatives in the 
General Assembly ; and, secondly, to determine the true con- 
struction of the twenty-third Article of the Constitution relative 
to the right of nomination to office. From the language of the 
Act calling the Convention, it is obvious that submission of its 
determinations was not only not expected, but was virtually 
dispensed with. Without raising again the question as to the 
power of the legislature thus to authorize the Convention to act 
definitively,^ it is clear that the case must be ranked as an ex- 
ceptional one, so far as relates to the question of submission, 
and can form no precedent for cases in which the circumstances 
should be different. 

§ 493. Of the forty non-submitting Conventions, the nineteen 
which remain are the Missouri Convention, whose sessions ran 
through the years 1861, 1862, 1863, and the so-called Secession 
and Reconstruction Conventions, held in 1860, 1861, 1864, 1865, 
and 1866. 

The force of these cases as precedents is broken by the very 
peculiar circumstances which attended the call of those Conven- 
tions. It is unnecessary to rehearse here a history familiar to 
every reader. The States in which those Conventions assem- 
bled were in a thoroughly revolutionary condition. To this 
remark the State of Missouri, in the period covering the exist- 
ence of the Convention of 1861, is no exception. Indeed, there 
is probably no doubt that that body was called in the interest of 
the Secession faction, and that, but for the determined stand 
taken by the Union majority, it would have carried the State, 
so far as a State can be carried, out of the Union. Respecting 
the thoroughly revolutionary condition of the other States, both 
at the date of their secession and at that of their reconstruction, 
there is no question, though at the latter, the hostile majority in 
the several States, under the overwhelming pressure of the 
Union arms, was sullenly acquiescent. Besides, at the date of 
the reconstruction Conventions, the electoral machinery was out 
of order, and the need of a reestablishment of the State organ- 
izations too urgent to admit of the delay necessary for submis- 
sion. All these reasons operated to prevent those Conventions 
from submitting their work to the people. In the cases of the 
Secession Conventions, moreover, there was doubtless an ap- 
1 On this question see §§ 484-487, ante. 



452 PRECEDENTS RELATING TO SUBMISSION. 

prehension that the bulk of the people, being unripe for the 
work of destroying the Union, might outvote those who were 
in the conspiracy to effect it. 

Admitting, however, for the sake of the argument, that the 
Conventions held in the seceding States, in the years mentioned, 
were regular, they were held in exceptional circumstances ; and 
the fact that they found it inexpedient or impossible to submit 
their work to the people, is clearly no precedent for non-sub- 
mission in times of peace and constitutional order. " The ex- 
treme medicine of the Constitution," as wisely hinted by Burke, 
ought not to be made " its daily bread." 

§ 494. Two peculiarities in the mode of submission practised 
in certain cases will now be noticed. 

By the forty-third section of the Vermont Constitution of 
1777, provision was made for the election, every seven years, of 
a Council of Censors, of thirteen members, one of whose 
powers should be to call a Convention, to meet within two 
years after their sitting, if there appeared to them an absolute 
necessity of amending any Article of the Constitution. It was 
further provided, that the Articles to be amended, and the 
amendments proposed, and such Articles as were proposed to be 
added or abolished, should be promulgated at least six months 
before the day appointed for the election of such Convention, 
for the previous consideration of the people, that they might 
have an opportunity of instructing their delegates on the 
subject. 

Here a Council of thirteen matured the proposed amend- 
ments, and the Convention was charged with the duty merely 
of passing upon them such a judgment as the people should 
have instructed them to do, or as the delegates should deem 
most accordant with the general voice. Such a mode of sub- 
mission is the same in its general character as that commonly 
adopted, where, as we shall see, the whole body of the electors 
are called upon to adopt or reject amendments to the Constitu- 
tion. The only difference is that, in Vermont, the electors 
choose a body of delegates to do for them, and in their names, 
what elsewhere is done by the electors directly. Considering 
the dangers of faction and corruption, always greater in small 
than in large bodies of men, there can be no do.ubt that, al- 
though the Vermont mode is theoretically unexceptionable, 



PRECEDENTS RELATIVE TO SUBMISSION. 453 

practically it is less to be commended than the one with which 
it is contrasted. 

§ 495. The remaining case, presenting peculiarities in the 
mode of submission, is that of Ten-itories framing their first 
Constitutions, preparatory to entering the Union as States. 
These are commonly, but, as I am confident, erroneously, cited 
as cases of non-submission. Assuming, for the present, that it 
is to the people — the sovereign — that Constitutions ought to 
be submitted, the question. To whom, in particular, should 
those framed for Territories be submitted ? admits of a ready 
answer. The sovereign authority in the Territories is the peo- 
ple of the United States. When a Constitution, then, is framed 
for a Territory, if submitted at all, it should be to the people of 
the United States, in some one of the ways recognized as 
proper for ascertaining its will. The best way, as we have 
shown, would doubtless be to take a vote upon the question 
of the electors throughout the Union ; but the practice of the 
government, under the Constitution of the United States, has 
been uniformly to leave the adoption or rejection of a Territorial 
Constitution to the Congress of the United States, the principal 
representative of the general sovereignty of the Union. This 
seems, implicitly at least, to be required by those clauses of the 
Constitution which provide that " new States may be admitted 
by Congress into this Union," and that " the United States 
shall guarantee to every State in this Union a republican form 
of government." ^ Beside this, which, in my judgment, is the 
normal and sufficient mode of submission, another has of late 
years come into use in these cases. In all, or nearly all, the 
enabling Acts of Congress authorizing Conventions in Terri- 
tories of the United States, passed since the troubles in 1855-9 
in Kansas, a clause has been introduced requiring those bodies 
to submit the Constitutions framed by them to the inhabitants 
of the respective Territories. This course, though theoretically 
not requisite, is highly proper, since otherwise Constitutions 
might be forced upon Territories by packed ConA^entions, in 
league with the majority of Congress, to which the people to be 
governed by them were hostile. It is to be understood, how- 
ever, that the adoption of this mode is not obligatory upon 
Congress, and that the action of the territorial inhabitants is 
1 Const. U. S., Art. IV. §§ 3, 4. 



454 BY WHOM SUBMISSION SHOULD BE MADE. 

petitory only, the power of absolute disposition remaining in 
Congress. It is not probable that the latter would, after the 
events which occurred in Kansas, ever sanction a Constitution 
condemned by a vote of a majority of the inhabitants of the 
Territory fairly taken. 

§ 496. Having thus considered the importance of submission 
in general, and the extent to which it has been practised in our 
constitutional history, it is proper now to inquire what is in- 
volved in the terra "submission." 

The term " submission," considered as designating a politi- 
cal act, involves, according to the point of view from which it is 
regarded, two distinct though related conceptions : first, that of 
something to be done by the submitting body ; and, secondly, 
that of something to be done by those to whom it is sub- 
mitted. To an adequate exposition of the subject, it is neces- 
sary that each of these conceptions should be analyzed, and its 
several features separately considered ; and this, I think, may be 
conveniently done by discussing in their order the following 
subjects: — 

I. By whom the particular regulations necessary for submit- 
ting Constitutions ought to be made. 

II. To whom they ought to be submitted. 

HI. The nature of the act performed by the person or body to 
whom submission is made. 

IV. In what manner Constitutions should be submitted. 

V. The final proclamation or announcement by which the 
act of submission is crowned or consummated. 

§ 497. I. In reference to the body by whom the regulations 
for submitting Constitutions ought to be made, it seems, laying 
out of view all questions of convenience or economy, that the 
most proper body is that by which the Convention is called, that 
is, the General Assembly. That body is in constant direct rela- 
tions with the people, and with their more immediate represent- 
atives, the electors. Its voice is not only known to them, but it 
is in an emphatic sense their own voice. Moreover, as has been 
already shown,^ the legislature has undoubted authority, under 
its general grant of legislative power, to pass the Acts necessary 
to submit a Constitution with such restrictions as shall secure 
respecting it an authentic expression of the public will ; to which 
1 See ante, §§ 482, 483. 



BY WHOM SUBMISSION SHOULD BE MADE. 455 

end it may provide by law for punishing such as attempt to cast 
illegal ballots, or to disturb the quiet of the election. With a 
Convention, the case is widely different. Conceding to it equal 
wisdom and experience, its power to legislate is denied by most, 
and doubted by all, respectable authorities ; certainly, its power, 
by legislation, both to provide for submission with the necessary 
safeguards, and to enforce by penalties the observance of its re- 
quirements. If a Convention has any power at all in the prem- 
ises, it is confined to that which is indispensable to the complete 
execution of its commission. It cannot extend to such special 
considerations as the exigencies of time and place may require, 
and to meet which, a wide legislative discretion alone is ade- 
quate. For, even if no clause of the Convention Act indicates 
the disposition to be made by the Convention of its work, com- 
mon sense would seem to require that it should report its pro- 
posed Constitution to the body that called it, to deal with as it 
might deem advisable. 

§ 498. It is not to be denied, however, that precedents have 
established a contrary rule. In a very large proportion of the 
cases in which submission has been made, it has been provided 
for by the Conventions themselves. Thus, of the Constitutions 
heretofore submitted, seventy-eight in number, this has been the 
case with sixty-three. In nearly one half of these cases, the 
Conventions acted under authority of the Constitution or of 
the Act of Assembly calling them, requiring them to submit 
their propositions to a vote of the people. In the remaining 
cases, those bodies acted, so far as I am advised, without direct 
authority of law ; in obedience, however, doubtless, to the tacit 
understanding, that submission should be made, which has gen- 
erally prevailed in the country. 

§ 499. When not done by the Conventions, submission has 
been commonly effected through the medium of the General 
Assemblies. It was so done in Virginia, in 1830, though under 
the direction, or at the request, of the Convention ; so, also, in 
Indiana, in 1851, and in some other cases. The Federal Con- 
stitution was submitted by the Congress of the Confederation, 
in pursuance of the request of the Convention of 1787. In 
Virginia, the Act under which the Convention of 1850 assem- 
bled, required it to transmit a certified copy of the Constitution 
to the General Assembly, in order that provision might be made 



456 TO WHOM SUBMISSION SHOULD BE MADE. 

by law for submitting the same to the people, and for organizing 
the government under it. This provision the Convention took 
the liberty of disregarding; transmitted that instrument directly 
to the Governor, who was required to publish it, and then made 
particular provision for taking a vote of the people upon it on a 
day named. This is one of the few instances of direct disobe- 
dience, on the part of Conventions, to the requirements of the 
Acts under which they were assembled, and is, in my judgment, 
totally destitute of any excuse or palliation. 

§ 500. II. As to the body to whom submission should be 
made, it is evident, in general, that no one can be entitled to 
pass upon the fundamental law but the sovereign itself; or, in 
the cases of the States, the quasi sovereign bodies, to whom, by 
the nation at large, has been committed the exercise of sovereign 
rights, so far as relates to local affairs, the peoples of the several 
States. But, because it is impracticable to submit it to such 
bodies, a choice must be made among the various orders of 
functionaries who represent the sovereign, or the respective quasi 
sovereigns ; or a special body must be deputed to act for them 
in the matter ; and, as the submission must thus, at best, be 
virtual, it is the duty of the authorities charged with the busi- 
ness of perfecting a fundamental code, to see to it that, in select- 
ing the representative to whom submission is to be made, one 
be chosen who will act therein at once the most promptly, the 
most intelligently, and the most honestly. Applying this test, 
it is evident, that neither of the three ordinary departments of 
the government, legislative, executive, and judicial, ought to be 
selected for that office. Not to repeat arguments already suffi- 
ciently presented, tending to show the impropriety of confiding 
fundamental legislation to that department which enacts our 
municipal laws, to that which interprets and applies them, or 
to that which executes them, it is apparent that the electors, the 
most numerous order of functionaries in the State, withdrawn 
most completely from the passions and temptations of actual 
administration, and standing nearer to the people than any other, 
are the best fitted for that delicate duty. Their number is so 
great, and they are, withal, so evenly diffused, that the views 
they may at any time hold may reasonably be presumed to be 
those of the sovereign, — a presumption, indeed, lying at the 
foundation of our whole suffrage system, — yet they are not so 



TO WHOM SUBMISSION SHOULD BE MADE. 457 

numerous or so diffused as to render a collective ballot by them 
impracticable. By naming the electors to this office, another 
advantage is gained, — one of the utmost importance in all 
governments founded upon a popular basis, — and that is, that 
substantive powers are not accumulated in a few hands, or in a 
single department, but are distributed, and thus made to coun- 
terpoise each other. The legislature, forbidden itself to meddle 
with it, calls a Convention to revise the fundamental law. The 
Convention matures a scheme of amendments which it deems 
necessary, and recommends them, but ventures to conclude 
nothing. The electors, the ultimate body of functionaries, take 
up the projet which the Convention has forged into shape, and 
temper and vitalize it by a power derived from the sovereign 
itself, and which they wield as its immediate representatives. 
Such is the distribution of functions exhibited in the work of 
fundamental legislation. 

§ 501. It is to the people, then, that is, to the electors — for 
when we speak of the actual administration of government,' it 
is they whom we mean by the term people — that Constitutions 
are properly to be submitted. Accordingly, of the Constitutions 
passed upon by authority other than that of the Conventions which 
framed them, the largest proportion have been submitted to the 
people in that sense. Thus, in twenty-five instances, the sub- 
mission was in general terms " to the people." ^ In twenty-three 
instances, it was to certain designated classes of the citizens, or 
of the inhabitants. Thus, fourteen Constitutions were submitted 
either to the " legal voters," " to the qualified voters under ex- 
isting laws," to those " qualified to vote for the most numerous 
branch of the legislature," or to those " qualified to vote for mem- 
bers of the Convention." ^ Four were submitted to the voters 

' This was the case with the Constitutions framed by the following Conven- 
tions : — Those of New Jersey, 1844; New Hampshire, 1778, 1783, 1791, and 
1850; Georgia, 1838; Massachusetts, 1778, 1779, 1820, and 1853; Kentucky, 
1849; Tennessee, 1834; Louisiana, 1844 and 1852; Indiana, 1850; Illinois, 
1847 and 1862; Maine, 1819; Michigan, 1835; Iowa, 1846 and 1857; Cali- 
fornia, 1849 ; Oregon, 1857 ; and Kansas, 1857 and 1859. In these instances, 
the Constitutions were uniformly submitted to the electors qualified to vote at 
general elections, under existing laws. 

2 They are the following : — Those of Delaware, 1852; Louisiana, 1864; 
Pennsylvania, 1838 ; North Carolina, 1835 ; New York, 1821 and 1846; Ohio, 
1851; Connecticut, 1818; Michigan, 1850; Texas, 1845; Wisconsin, 1846; 
Maryland, 1851 ; Kansas, 1855; and N'evada, 1864. 



458 TO WHOM SUBMISSION SHOULD BE MADE. 

qualified under the proposed Constitution, or under both the old 
and new Constitutions,^ and two to the white male inhabitants 
of twenty-one years of age, &c.2 In the above are embraced 
many first Constitutions of States formed out of territory of 
the United States, and the phraseology referred to indicates the 
body of persons to whom, not the regular submission required 
by the Federal Constitution, was made, — for that, as we have 
seen, is always to the Congress of the United States, — but that 
supererogatory submission, authorized by Congress of late years 
for the purpose of securing the settlers in our Territories against 
a recurrence of the outrages which so foully disgraced the Amer- 
ican name in Kansas. In all cases of Territories framing their 
first Constitutions, as we have seen, submission can be properly 
made only to the people of the United States, represented in 
Congress, and they have all conformed, of necessity, to this rule. 
§ 502. Among the instances of submission given, are a few 
which deserve special attention on account of their exceptional 
character. Of these, the first that I shall mention are the two 
cases of Constitutions framed for the United States. The Con- 
stitution, improperly so-called, of the Confederation, comprised 
in thirteen articles, was the Constitution of a league of States, 
each of which expressly reserved to itself " its sovereignty, free- 
dom, and independence." It was, therefore, a mere treaty, and, 
of course, its framers, the Continental Congress, were bound to 
submit it to the States, of which they were the representatives. 
This course was followed, and that instrument was ratified by 
the States as political societies, each acting by its legislative 
Assembly.^ The Federal Constitution, on the other hand, was 
a Constitution based not only on States, but on individuals, and 
so far involved the substitution, for the principle of a league, of 
that of a national government. It had been found that the 
system of the Confederation was so powerless as to make it 
nearly useless for many purposes of government. Necessity 
required the enlargement of the plan, and not a mere revision 
or amendment of the government framed on the existing plan. 
Accordingly, although nothing was swept away which had 

1 These are those of Virginia, 1830, 1851 ; Rhode Island, 1842 ; and West 
Virginia, 1863. 

2 These are those of Wisconsin, 1848; and Minnesota, 1857. 

3 Federalist, No. XXIL, adjinem, per Hamilton. 



TO WHOM SUBMISSION SHOULD BE MADE. 4.59 

shown itself useful, unless clearly incompatible with the plan 
demanded by the public necessities, the system proposed was, 
in its most characteristic particulars, a radically new one. It 
was a national government with federal features, instead of a 
mere league, with scarcely any features at all of an effective 
government. While it preserved the States, as political com- 
munities, they entered into the new system shorn of many of 
their most important powers. The new government was, in its 
essence and organization, a popular government, and not a 
mere sleazy union between popular governments ; and in it first 
emerged into prominent political self-assertion The People of 
the United States, in whose name it purported to be framed. 

§ 503. The sources, then, from which the Federal Constitution 
must seek ratification, were three : first, the existing government 
of the Union, embodied in the Congress of the Confederation ; 
secondly, the States, as political organizations, represented by 
their legislatures ; and thirdly, the people of the United States, 
by that Constitution made the inheritors of many of the pow- 
ers and responsibilities of the two former. The necessity of 
securing a ratification of the new system by the Congress of the 
Confederation and by the States is apparent, as well from the 
fact that they were required by it to yield, the first all, and the 
second much, of its power to that system, as because the 13th 
Article of the existing Constitution expressly forbade the mak- 
ing of any alteration in its terms, " unless such alteration should 
be agreed to in a Congress of the United States, and be after- 
wards confirmed by the legislature of every State." Submis- 
sion to the people of the United States, on the other hand, was 
demanded by the consideration that they were really the princi- 
pals, in whose name the great act was to be consummated, 
whilst all others, the Congress and the States, were subordinates 
and accessories. 

Accordingly, the Convention of 1787 provided for a submis- 
sion which should satisfy all these conditions, in the following 
resolution : — 

" Resolved, That the preceding Constitution be laid before 
the United States in Congress assembled, and that it is the opin- 
ion of this Convention that it should afterwards be submitted 
to a Convention of delegates, chosen in each State by the people 
thereof, under the recommendation of its legislature, for their 
assent and ratification." 



460 TO WHOM SUBMISSION SHOULD BE MADE. 

By acting according to this resolution, it is evident that both 
the government of the Confederation and those of the States 
would express their assent to the new Constitution. The pro- 
vision that the people of the several States should elect delegate 
Conventions to pass upon it, fulfilled the remaining condition, 
since thus, and thus only, could the people of the United States 
vote upon the proposed Constitution as a whole, that is, by 
voting in groups by States. 

§ 504. The next cases of submission deemed exceptional, 
which I shall consider, are those adopted by the Virginia Con- 
ventions of 1829 and 1850, by those of Rhode Island of 1842, 
and West Virginia of 1863. The mode adopted in those cases, 
substantially the same in all, was to submit the Constitution to 
the persons thereby qualified to vote at the general State elec- 
tions.^ It is evident that, in these cases, a new principle was 
invoked, namely, that of submitting proposed changes in the 
fundamental law to persons not intrusted with public functions 
in the State ; in other words, to citizens forming no part of the 
existing governmental system. Such a submission was, in my 
judgment, not only a novelty, but a capital innovation, upon 
which might hang, for the States concerned, the most weighty 
consequences ; and, unless the principles are misconceived, which 
ought to govern the subject, it was unwarranted and in the 
highest degree dangerous. In the first case mentioned, — that 
of the Virginia Convention of 1829, the Convention Act had 
authorized that body to submit the Constitution to such persons 
as should be qualified by it to vote for members of the House 
of Burgesses, — an authorization which, though in terms ample, 
it is in my judgment certain the General Assembly had no 
power to give. 

§ 505. In neither of the four cases, so far as I am advised, 

1 The Virginia Convention of 1829 was authorized to submit its work " to 
the voters thereby qualified to vote for members of the House of Burgesses ; " 
that of 1850, " to the voters qualified under the existing or amended Constitu- 
tion ; " that of Rhode Island, " to all persons qualified to vote, to all who might 
be qualified to vote under the existing laws previous to the time of such their 
voting, and all persons who should be qualified to vote under the provisions of 
such " (that is, the proposed) " Constitution ; " and that of West Virginia, " to 
all persons qualified to vote under the amended Constitution." In all these 
cases the class of persons entitled to vote was increased above that under the 
existing Constitution. 



TO WHOM SUBMISSION SHOULD BE MADE. 461 

was the propriety of that mode of submission discussed, except 
in the first. In the Virginia Convention of 1829, a powerful 
opposition was made to it by some of the leading men in the 
body. But a measure which received the votes of Barbour, 
president of the Convention, of Marshall, Tyler, and Madison, 
though opposed by Leigh, Giles, Nicholas, Mason, John Ran- 
dolph, Tazewell, and Upshur, cannot be lightly condemned. A 
brief synopsis of the arguments advanced by both sides may be 
useful, — premising merely that there had been passed by the 
General Assembly of Virginia two Acts relating to that Con- 
vention : first, an Act submitting to the people the question of 
calling a Convention ; and, second, after the people had, by a 
large majority, sanctioned such a call, an Act to call and organ- 
ize the Convention, in which was inserted the provision relating 
to submission before referred to. 

§ 506. By the friends of the mode of submission proposed by 
the committee of the Convention on that subject, in conformity 
with the authorization of the General Assembly, it was argued, 
that when an affirmative answer was given by the people to the 
simple question propounded by the General Assembly, whether 
they desired a Convention or not, it was their intention that the 
Assembly should give expression to the public will, as well with 
respect to the manner in which the Convention was to proceed 
as to the purposes for which it was to be holden ; that here, 
then, was the authority of the constituent body ; here was the 
voice of the principals, to whom the legislature were but agents ; 
that, acting under that authority, they declared the manner and 
purpose of the Convention ; that that declaration, however, was 
not obligatory, had no sanction, did not bind the freeholders to 
send delegates; that, if it contained anything which the free- 
holders did not approve, they might have arrested the pro- 
ceeding ; that they had the same authority to give counter in- 
structions as they had to give original instructions ; that they 
could have gone to the polls again, and commanded the leg- 
islature to repeal the Act ; but that, as the case was, if the 
legislature acted at all in the matter, it had plainly to pre- 
scribe the objects of the Convention, and how they were to be 
attained ; that the whole subject had been referred to them — 
there being no other way to do it — and that the only remedy 
was to arrest the matter in pais; that such being the case, 



462 TO WHOM SUBMISSION SHOULD BE MADE. 

what had been done ? that the second Act, when presented to 
the freeholders, had been acquiesced in by the election of mem- 
bers everywhere, without complaint or remonstrance ; that, if 
there was any other mode in which the people could express 
their approbation, it might be said the Act was still unratified ; 
when, therefore, it was complained, that the Convention was 
proceeding to act definitively upon the right of suffrage, by ad- 
mitting persons to vote on the new Constitution, without con- 
sulting their constituents, the answer was, that it was true, but 
that their constituents had authorized them so to do ; that it 
would not be pretended that their constituents had no such 
power, because it had never been supposed that the principal 
was necessarily bound to retain the right of ratifying the acts 
of his agent ; that it might have been unwise in the people to 
grant such a power, but that was a question for the constituent 
body alone ; that, finally, it was too late to assert such a limit- 
ation of the power of that body, since the existing Constitution 
of the State had never been submitted to the constituent body 
for their ratification ; that, if that instrument was valid, as the 
supreme law, it was because the people had tacitly expressed 
their assent to it by electing officers under it, and by acquiescing 
in its provisions. 

§ 507. On the other hand, by Mr. John Randolph, Nicholas, 
and others, it was contended, that, conceding the right of the 
General Assembly, by its second Act, to provide for the call and 
organization of the Convention, it transcended its power in 
authorizing that body to submit the result of its labors to any 
body but to the freeholders themselves. Thus, Mr. Randolph 
said : — 

" By whose authority did the legislature pass the .... Act 
.... under which we are assembled here ? By the authority 
of their constituents. And who are their constituents ? The 
freeholders of the Commonwealth. By whose authority do we 
sit here ? Whence is our power ? From our constituents. 
And who are our constituents ? The same answer must be 
given, — the freeholders of the Commonwealth. Now, the free- 
holders of the Commonwealth having given their sanction to 
the .... Act of the legislature — I refer to the first as well as 
the second Act on the subject of a Convention — and deputed 
us here to propose amendments to the old Constitution, or the 



TO WHOM SUBMISSION SHOULD BE MADE. 463 

draft of a new one, to whom, I ask, in the nature of things, did 
the freeholders suppose the new Constitution was to be sub- 
mitted for adoption or rejection ? Must it not have been to that 
original authority, to that source and fountain, from whence is 
derived all our authority as a Convention ? — I mean to them- 
selves ? Let me suppose a case. A majority of the freeholders 
of Virginia .... being the body politic of Virginia, have con- 
sented that a Convention shall assemble for the purpose of 
devising amendments to the existing Constitution or proposing 
a new Constitution in its stead. Now, sir, the freeholders of 
Virginia have not yet decided — though they have decided that 
amendments shall be submitted to them — that, with worse than 
the stupidity of Esau, they shall be deprived of their birthright. 
The Convention are proposing that the former limits of the right 
of suffrage shall be extended, I will say, ad indefinitum. Who is 
to decide on this question ? Those to whom we propose to ex- 
tend that right ? Unquestionably, no ; no more than the people 
of Ohio or Pennsylvania have a right to decide it. They have 

no right whatever ; they have not a shadow of right Sir, 

it is as plain as any proposition in Euclid, — sir, it is plainer — 
it is self-evident — that no other power on earth, save that power 
from which this Convention derives all its authority to propose 
any Constitution at all, can rightfully pronounce on the validity 
of our acts, or decide upon the acceptance or rejection of such 
Constitution as we shall make." ^ 

§ 508. The same principles that govern the foregoing cases, 
in which submission was made to the electors plus citizens not 
within the electoral circle, will settle that of submission to a 
part only of the electors, not representing the whole body. 

This latter mode was attempted, in a case already referred to, 
by the Illinois Convention of 1862.- In that case, an Ordinance 
was passed, entitled " An Ordinance to secure to the citizens of 
Chicago and the corporate authorities thereof the right to elect 
and appoint their own officers.'' By its terms this Ordinance 
was to be submitted, on the third day of the ensuing April, to 
the legal voters of the city of Chicago, and, if adopted, was 
to have the effect of repealing certain statutes obnoxious to a 

1 Deb. Va. Com., 1829, pp. 866, 884, 885. See also Speech of Mr. Nicholas, 
id. p. 891. 

2 See ante, §§ 430-434. 



464 TO WHOM SUBMISSION SHOULD BE MADE. 

portion of the inhabitants of said city and vicinity. The Ordi- 
nance was, moreover, incorporated into the Schedule appended 
to the Constitution, and with it was directed to be submitted to 
a vote of the people of the State at an election to be held on 
the 3d Monday of June, about two months after the separate 
vote on the Ordinance alone. The object designed to be effected 
by the foregoing provisions, is apparent at a glance. It was 
intended to parcel out the Constitution, submitting one part of 
it to the citizens of Chicago, and the residue to the people of 
the State at large, and to cause the former, temporarily at least, 
to take effect independently of the latter. The question is, was 
it within the competence of that body to submit its work, or 
any portion of it, to the citizens of Chicago, or to any number 
of the electors less than the whole ? 

§ 509. The impropriety of such a submission becomes evi- 
dent when it is considered that it is the sovereign, the political 
society or people, as a unit, whose function it is to pass upon 
the fundamental law. The electors of a single district have no 
power to speak for that great constituency, for they neither 
constitute nor represent it. The voice uttered by them, when 
they speak by their ballots, is but an element in the voice 
of the people, having no force of itself whatever, but only as it 
contributes to swell the chorus which alone is the people's voice. 
The voice of the people is one freighted with a single sentiment 
or command, not a multitude of voices, each uttering a senti- 
ment or command of its own. It is the resultant of all the 
separate voices of the individuals constituting the people. 
When, therefore, the electors of Chicago voted upon the Ordi- 
nance in question, they did not utter the voice of the people of 
the State, in whom alone rests the power of making and un- 
making Constitutions, but of a minute fraction of it, having no 
authority to represent the whole. However respectable they 
were in point of numbers and intelligence, they were as desti- 
tute of power to speak officially for the people of Illinois as the 
two London tailors, whose petition to Parliament commenced 
in these words, " We, the people of England," were to speak for 
the latter.^ 

1 To this case in Illinois it may be proper to add one or two others in prin- 
ciple not entirely dissimilar. The Tennessee Convention of 1834 submitted the 
Constitution it framed to that part of the electoral body which was white, thus 



NATUBE OF THE ACT OF THE PEOPLE, ETC. 465 

§ 510. III. We are now to determine the nature of the act 
performed by the persons or body to whom submission is made. 

A convenient mode of conducting this inquiry will be to pass 
in review the various departments of a government, and to 
select from amongst them that one whose acts and functions 
correspond with those of the people in the act of passing upon 
a fundamental law. 

The act in question must, I think, be comprised within one 
of the three classes of acts known as legislative, executive, and 
judicial. Let us see to which it belongs, commencing with the 
last. 

(«). When the people pass upon a Constitution, the act done 
by them is so palpably not of a judicial character, that I spend 
no time in comparing or contrasting it with the exercise of 
judicial power. 

(b). Understanding by the term executive acts, such as are 
usually performed by our executive magistrates, there are of 
such acts three separate classes : 1, administrative acts, relating 
to the carrying of laws into practical effect; 2, acts involving 
the exercise of the official negative, or veto; and, 3, acts of 

excluding from a voice in forming the fundamental law, the free blacks author- 
ized to vote by the Constitution then in force, — that of 1796. 

So also the Maryland Convention of 1864 submitted its Constitution to " such 
electors as are qualified according to the provisions of this Constitution." The 
qualifications were the same under this and the former Constitution, except that, 
by the Constitution of 1864, no person was qualified to vote but upon taking a 
stringent oath, intended to exclude rebels and rebel sympathizers. Whether or 
not this exclusion was absolutely necessary for the safety of the State, at the 
time, is a political question which does not concern us here. Upon strict prin- 
ciple, however, I have no doubt the course taken by the Convention was irregu- 
lar, though it has been contended that it was authorized by the terms of Section 
VI. of the Convention Act, which required the Constitution to be submitted to 
" the legal and qualified voters of the State for their adoption or rejection, at 
such time, in such manner, and subject to such rules and regulations as said 
Convention may prescribe." Admitting that the General Assembly intended by 
this Act to authorize a submission to the electors, minus a certain class of per- 
sons designated, it is doubtful whether it had the power thus to discriminate. If 
it had, it must be on the ground that it could override even the Constitution 
itself, when, in its judgment, the safety of the State required it — a ground, I 
need not say, extremely menacing to the public liberties. The Tennessee and 
Maryland cases, then, must both, in my judgment, be placed alongside of that 
of Illinois, described in the text, though, perhaps, the aberration from principle 
was in each of the former less glaring than in the latter. 
30 



466 NATURE OF THE ACT OF THE PEOPLE 

authentication, such as the signing of bills, &c. Does the act 
in question belong to either of these classes ? 

1. It cannot be pretended that the act of the people, in the 
case supposed, is an act of administration, which is possible 
only when the law to which it relates has been passed and ap- 
proved. The purpose of an administrative act is to give to a 
law, already complete as such, the practical operation, without 
which it would remain a dead letter in the statute book. This 
is equally true of municipal laws, strictly so called, and of or- 
ganic or fundamental laws. 

§ 511. 2. Though the act of the people we are considering bears 
some resemblance to the exercise of the negative or veto power, 
still I am satisfied it is radically different from it ; and the result 
is the same, whether it be compared with the true veto, as exer- 
cised by the Roman Tribunes, by the individual members of the 
Polish Diets, or by the English monarchs, or with the qualified 
veto, more properly called the negative, familiar to us in Amer- 
ica. The veto proper was an absolute interdict upon the 
measure proposed, and it was nothing more. It never ratified 
or sanctioned, but always forbade. It consequently made of 
every functionary intrusted with the power a coordinate depart- 
ment with the legislature in the matter of rejecting, though not 
in that of confirming, laws. The negative of an American 
President or Governor is somewhat similar in its nature, but is 
much less extensive in its effects. It is, like that, a mere inter- 
dict ; but it is an interdict that is only provisional, having the 
effect simply of compelling a reconsideration of the measure to 
which it has been applied, and, in the vote to be taken upon it, 
of enhancing, as if by a temporary amendment to the Constitu- 
tion, the majority necessary to carry it. In most of the State 
Constitutions, as in that of the United States, it is provided, that 
a bill "returned with the objections" of the Executive may, 
notwithstanding, become a law, if, on a reconsideration, it be 
passed by a two-thirds vote in both houses. 

That a vote of the people upon a Constitution is not in char- 
acter like either of these executive acts, is perceivable at a 
glance. The vote of the people may be in the negative, or it 
may be in the affirmative ; and in either event it is absolute. 

Again : both the veto proper and the negative of an Amer- 
ican executive officer, operate only upon a bill passed through 



IN PASSING UPON A CONSTITUTION. 467 

all the forms of a law, by the two houses of the legislature, 
and submitted to him for his official sanction. It is impossible 
that a measure not thus originating should be the subject of 
the veto or of the negative. With a Constitution submitted to 
a vote of the people, it is different. A Convention might reject 
a particular form of a Constitution, and adopt and submit to 
the people another; but if the legislature were, in the mean 
time, before the vote upon it, to submit for the consideration of 
the people the rejected Constitution, it might be competent for 
them, at the same election, to adopt the latter and reject the 
former. 

§ 512. 3. For similar reasons, the act of the people is not to 
be compared with the executive act of giving assent to bills by 
the formality of signing them. The latter is an act applicable 
only to bills passed by the legislative branch, and is only used 
to affirm, and not to negative, such bills. 

§ 513. (c). The act of the people in adopting or rejecting a 
Constitution, on the other hand, is clearly legislative in its char- 
acter. It either gives force to what comes to them as a mere 
proposition, or it rejects that proposition absolutely and defini- 
tively. A power thus to impart vitality to law, where before 
there was none, is a power of legislation. Conceding that the 
people have power to enact fundamental laws, all becomes sim- 
ple and intelligible. Under its general power to enact a Consti- 
tution, the people may perhaps authorize a Convention to exer- 
cise the same power, without submitting it for ratification — that 
is, for what it may deem sufficient reasons, it may delegate that 
power to a Convention ; ^ or, grasping more firmly the reins of 
power, and consulting more the safety of the Commonwealth, it 
may itself exercise its legislative function, rejecting or adopting 
a part or all of what is submitted, as it may think advisable. 

Nor is the character, thus attributed to the people, of an ex- 

1 This, perhaps, needs explanation. As was observed a few pages back, it is 
perhaps too late to deny to the people this power of delegation. It has been 
too often exercised. But the right of a legislature to authorize a Convention to 
exercise the power in question is, on principle, more than doubtful. It cer- 
tainly, in my judgment, does not exist. The most that can be conceded — and 
that rather on the authority of precedents than otherwise — is, that a legislature 
might pass a law providing for definitive action by a Convention, and if that 
law were submitted to the people so as fairly to draw out an expression of the 
public will on the point, it would be liable to no serious objection. 



468 NATUEE OP THE ACT OF THE PEOPLE, ETC. 

traordinary legislature, so far as concerns the fundamental law, 
inconsistent with their evident inability to mature laws by dis- 
cussion, as in legislative assemblies. The same inability in- 
heres to some extent in our legislatures. Without committees 
to inquire and report, to draft and mould into form fit for public 
action, bills for Acts, legislation as known amongst us would be 
well-nigh impracticable. As a body, a legislature is too numer- 
ous and unwieldy for the function of digesting such bills. The 
difficulty inherent in legislation by the people, though somewhat 
greater by reason of their greater number and dispersion, is of 
precisely the same character. The people, acting as legislators, 
need the antecedent ministry of intelligent and skilful commit- 
tees to gather and to embody in fitting forms their collective 
sense. Our Conventions are simply committees of such a kind. 
And if we look closely into the principles of legislation, the fact 
that the people never legislate in a single body, but in groups, 
assembled in separate districts, not to debate, but to vote upon, 
the measures proposed to them, does not constitute a radical 
difference between them and a legislature. The latter might 
enact the statute law in the same way ; and to those familiar 
with the practices of such bodies, it may be doubtful whether 
legislation so conducted would not be more honest, if not more 
intelligent, than it is now. 

It seems clear, then, that the act of the people in passing 
upon a Constitution is a legislative one, though, on account of 
the exceptional circumstances under which it is performed, an 
act unique in character.^ 

1 That the people act, in the case supposed, in a legislative capacity, has 
been repeatedly intimated by high authority. See the case of The People v. 
ColHns, 3 Mich. R 343, per Douglass, J. ; 2 Am. Law Reg. p. 591, same case. 

Mr. John Austin, in his profound work, The Province of Jurisprudence De- 
termined, says, respecting a single State, what is true of all the States in the 
Union : — "In the State of New York, the ordinary legislature of the State is 
controlled by an extraordinary legislature The body of citizens appoint- 
ing the ordinary legislature forms an extraordinary and ulterior legislature, by 

which the Constitution of the State was directly established That such 

an extraordinary and ulterior legislature is a good or useful institution, I pre- 
tend not to affirm. I merely affirm that the institution is possible, and that, in 
one poUtical society, the institution actually obtains." — The Prov. of Jurisp. 
Determined, Vol. I. pp. 205, 206. 

An anonymous writer in the American Law Register, published at Philadel- 
phia, has attempted to cast ridicule upon this observation of Mr. Austin, as an 



HOW CONSTITUTIONS SHOULD BE SUBMITTED. 469 

§ 514. IV. I pass now to consider briefly the manner in 
which Constitutions should be submitted. 

In determining the manner of submitting Constitutions to 
the people, two things should be kept prominently and con- 
stantly in view : first, the obtaining, completely and as far as 
possible in detail, of the public will ; and, secondly, convenience, 
— the latter, however, being a consideration of inferior impor- 
tance, when compared with the former. The general rule, un- 
doubtedly should be, that every clause of both Constitution and 
Bill of Rights must be submitted to the people, those only ex- 
cepted which are to take effect in the act of making the sub- 
mission itself. No other rule can be adopted with safety ; for if 
it were admitted that any other exceptions whatever could be 
made, and that provisions of minor importance might be re- 
served from the people, to be put in force by the Convention 
directly, the door would be thrown open to all manner of 
abuses. When is a constitutional provision of minor impor- 
tance ? The same provision, from a difference of circumstances, 
may be of vast moment in one, and of no moment at all in 
another. Constitution. Obsia principiis is, in such cases, the 
only safe maxim. K it be recognized as the duty of a Conven- 
tion to submit its work to the people, either on the ground that 
the legislature has so directed, or that such a course is intrinsi- 
cally proper, because its resolutions are recommendatory only, 
where can it find the right to discriminate between what should 
and what need not be submitted ? — to draw the line beyond 
which it is within its own discretion to obey or to disobey the 
imperative provisions of law ? 

§ 515. A Constitution may be wholly new, or it may be an 
old one revised by altering or adding to its material provisions. 
It may, also, in a hundred separate subdivisions, contain but a 
fourth of that number of distinct topics, or each subdivision 
may be substantive and independent. It is obvious that the 
submitting body, weighing accurately the public sense, may 

instance of the ignorance prevailing among public men and writers abroad in 
regard to our institutions. But I am satisfied the writer referred to had not the 
slightest conception of Mr. Austin's meaning. We must not be the slaves of 
words. In substance, the electors, in the act of ratifying or rejecting a Consti- 
tution, are a legislature, — " an ulterior legislature," — as compared with the 
General Assembly. See Am. Law Reg., Vol. IV., New Series, p. 12. 



470 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 

determine whether the whole Constitution must stand or fall as 
a unit, or whether some parts, being adopted and going into 
effect without the rest, the new system would be adequate to 
the exigencies of the state, and may submit it as a whole or in 
parts accordingly. But it is perfectly clear that every distinct 
proposition, not vital to the scheme as a whole, or to some other 
material part, ought to be separately submitted.^ If it were not 
nearly impracticable, the best mode would be to submit every 
distinct proposition separately, so that each voter could vote yea 
or nay upon it, regardless of anything but its absolute propri- 
ety. In many cases, however, such a mode could not be safely 
adopted, since different measures might have been so adjusted 
to each other, that by the absence of either the balance of the 
system would be disturbed.^ Such associated provisions ought, 
therefore, to be submitted in conjunction. On the other hand, 
where no material changes have been made in the existing Con- 
stitution, or such only as had been unequivocally demanded by 
the public voice, the more convenient and compendious mode 
of a submission in mass may, without material objection, be 
adopted. Every case, then, must, to a considerable extent, 

1 In November, 1820, a bill for an Act calling a Convention was passed by 
both houses of the New York Legislature, but was returned by the Council of 
Revision with objections, one of which was, that the bill provided for submitting 
the Constitution to the people in mass, and not in separate sections according to 
the various subjects embraced. The Council, stating this ground of objection, 
say : it is objected to, " Because the bill contemplates an amended Constitution 
to be submitted to the people, to be adopted or rejected in toto, without prescrib- 
ing any mode by which a discrimination may be made between such provisions 
as shall be deemed salutary, and such as shall be disapproved by the judg- 
ment of the people. If the people are competent to pass upon the entire 
amendments, of which there can be no doubt, they are equally competent to 
adopt such of them as they approve, and to reject such as they disapprove ; and 
this undoubted right of the people is the more important, if the Convention is 
to be called in the first instance without a previous consultation of the pure and 
original source of all legitimate authority." See post, Appendix B. 

2 On this subject, Daniel Webster, in the Massachusetts Convention of 1820, 
said: "When the Constitution of New Hampshire" (meaning that of 1783) 
"was revised," (in 1792,) "the Convention submitted the amendments to the 
people for their adoption separately, and it was found at the adjourned session 
of the Convention that some were adopted and some rejected, so as to make 
incongruous those which were adopted. The Convention then pursued the 
course .... of uniting in one article all that were necessarily connected, and 
no further difficulties occurred." — Deh. Mass. Conv.oi 1820, p. 224. 



HOW CONSTITUTIONS SHOULD BE SUBMITTED. 471 

stand upon its own foundation. The problem is — Given one 
or more proposed changes of the fundamental law — to reconcile 
the indispensable requisite — a bond fide submission of them to 
the people, so as to ascertain their will in respect to each of 
them — with a reasonable degree of convenience. Submission 
must be so made, moreover, that the general scheme, if adopted, 
shall not limp from lack of a necessary member, — it being ob- 
viously better to be relegated to an old Constitution, which, 
though inadequate and partly obsolete, perhaps, is yet fully and 
consistently developed, than to be governed by a new one so 
mutilated, in the act of birth, as to lack necessary powers. 

§ 516. It must be admitted, that but little attention has been 
paid to the distinctions here indicated. In far the larger propor- 
tion of the cases in which submission has been made, it has 
been of the instruments entire. This was naturally true, in 
general, of all such as were first Constitutions of their respective 
States. 

The earliest departure from this mode was in Massachusetts, 
in 1780, in which the Frame of Government and Bill of Rights 
were both submitted in such a way as to enable the people to 
reject the whole or any part of either, — a course followed by 
all the subsequent Conventions in that Stfite, though the Act 
calling the Convention of 1820 left it to the discretion of that 
body to determine the mode in which the submission should be 
made. The example set by Massachusetts in 1780 was fol- 
lowed by New Hampshire in 1791, and in the subsequent revis- 
ion in 1850. The Acts calling the New York Conventions of 
1821 and 1846 required those bodies to submit their proposed 
amendments to the people, together or in distinct propositions, 
as to them should seem expedient. Accordingly, the Conven- 
tion of 1821 provided that they should be submitted " together, 
and not in distinct parts ; " and that of 1846, expressing the 
opinion that the amendments it proposed could not be prepared 
so as to be voted on separately, submitted them en masse ex- 
cepting one, that relating to " equal suffrage to colored persons," 
which was submitted as a separate article. Under a similar 
discretion, the Pennsylvania Convention of 1837 submitted its 
amendments en masse. The Illinois Conventions of 1847 and 
1862, and the Oregon Convention of 1857, pursued a course 
similar to that of the New York Convention of 1846, submit- 



472 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 

ting the great body of their respective Constitutions entire, but 
a few articles relating to slavery, to the immigration of colored 
persons, the public debt, and other subjects considered of doubt- 
ful policy, separately. The Illinois Convention of 1847, though 
it submitted the bulk of its articles in the manner stated above, 
withheld one, relating to " commons," altogether from the con- 
sideration of the people, therein proceeding in direct violation 
of the Act under which it assembled, which expressly required 
it to submit its amendments to the people.^ 

§ 517. The subject of the proper mode of submitting Consti- 
tutions to the people, received an elaborate discussion in the 
case, now celebrated in our political annals, of the so-called 
Lecompton Constitution, framed for the State of Kansas. Con- 
cocted in a time of crisis by the partisans of slavery, by whom 
an attempt was made to force it upon that State against the 
wishes of the majority of its inhabitants, mainly emigrants from 
the ftee States, and desirous of establishing free- state insti- 
tutions therein, that instrument had the singular fate to be 
twice, and a part of it three times, submitted to the people, by 
different bodies, and though once declared adopted, to have 
never in fact been established as the Constitution of that State. 
A brief sketch of the history of this case will not be without 
interest, and it will, it is believed, throw light upon the general 
doctrine of submission of Constitutions we are considering.^ 

On the 5th of September, 1857, there assembled at Lecomp- 
ton, Kansas, at the call of the Territorial Legislature, but with- 
out an enabling Act of Congress, a Convention, by which the 
Constitution referred to was framed. The body was composed 
in the main of delegates elected in the interest of, if not by, the 
pro-slavery party in that and the neighboring State of Missouri, 
the free-state men of Kansas abstaining from the elections, in 
the expectation that whatever Constitution the Convention 
should agree upon would be submitted to the electors of the 
Territory. The Territorial Governor had, in fact, promised sol- 
emnly, in the name of the government which he represented, 

1 Some Constitutions contain an excellent provision, requiring submission to 
be made in such a manner, that each clause can be voted on separately. See 
Ohio Const. 1851, Art. 16, Sec. 3. It provides that "when more than one 
amendment shall be submitted at the same time, they shall be so submitted as 
to enable the electors to vote on each amendment separately." 

2 See also ante, §§ 415-418. 



HOW CONSTITUTIONS SHOULD BE SUBMITTED. 473 

that the Constitution it should frame should be submitted to a 
fair vote of the people. This promise, however, was not re- 
deemed; so far from it, the Convention enacted the farce of 
submitting it to the people, but did it in such a way as to com- 
pel them to vote for the Constitution or abstain from voting 
altogether — the vote, to be taken on the 21st of the ensuing 
December, being required to be, " For the Constitution with 
slavery," or " For the Constitution without slavery." 

In the mean time, a new Territorial election being held, and 
resulting in giving to the Free-State party a majority in the Ter- 
ritorial legislature, that body, on the 17th of December — about 
a week before the vote ordered by the Convention — passed 
an Act fairly submitting the Constitution as a whole, except the 
slavery clause, which was submitted as a separate article, to the 
qualified electors, at an election to be held on the 4th of Janu- 
ary, 1858. Both these elections were held at the times fixed ; 
that ordered by the Convention resulting in the adoption of the 
Constitution with slavery by a vote of 6266 to 567 ; and that 
held under the Territorial Act, in the rejection of the entire 
Constitution by a vote of 138 " for the Constitution with sla- 
very," 24 " for the Constitution without slavery," and 10,226 
" against the Constitution." Here, then, was a Constitution, 
adopted in the main by six thousand majority at one election, 
and at another, held two weeks later, rejected in toto by over 
ten thousand majority. Evidently, such results could only have 
been produced by fraud and management upon one side or the 
other. Each party claimed that the election, whose result was 
favorable to its own views, was the only valid one, but, inas- 
much as the pro slavery party constituted the majority of the 
Convention, the Constitution was, under its direction and by its 
officers, forwarded to Congress as the expression of the will of 
the inhabitants of the Territory, with a petition for admission 
into the Union as a State under it. 

§ 518. Accordingly, the Senate Committee on Territories 
reported a bill for that purpose, upon which arose a very excited 
and protracted debate. This bill simply provided for the ad- 
mission of the Territory into the Union upon the usual condi- 
tions relating to the public lands, though in its preamble was 
inserted a recital recognizing the validity of the Lecompton 
Constitution. The opponents of the bill resisted it mainly on 



474 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 

the ground that the Constitution had not been submitted to the 
inhabitants of the Territory bond fide, but in such a manner that 
no elector could vote against the provision establishing slavery, 
without voting at the same time for the residue of the Consti- 
tution as a whole. That instrument, it was said, contained, or 
might contain, provisions as distasteful to the people as that 
relating to slavery, and yet, in order to vote against the latter, 
they must vote in favor of the former, — a dilemma into which 
no Convention was justified in bringing those for whom they 
were pretending to act. Notwithstanding all these objections, 
the bill was carried through the Senate by a vote of 33 to 25. 
This bill being sent to the House, there was moved as a substi- 
tute for it another, providing for the admission of Kansas into 
the Union, but containing a clause requiring the Constitution 
to be again submitted to the people, and authorizing the inhabi- 
tants, in case of its rejection, to form for themselves a Constitu- 
tion and State government. The first section, after the usual 
words importing the admission of the State into the Union, con- 
tained the following significant recital : " But, inasmuch as it is 
greatly disputed whether the Constitution, framed at Lecomp- 
ton on the 7th day of November last, and now pending before 
Congress, was fairly made, or expressed the will of the people 
of Kansas, this admission of her into the Union as a State is 
here declared to be upon this fundamental condition precedent, 
namely : that the said constitutional instrument shall be first 
submitted to a vote of the people of Kansas, and assented to 
by them, or a majority of the voters, at an election to be held 
for the purpose," &c., &c. Then followed a specification of the 
mode of taking the vote, by ballots " for the Constitution," or 
" against the Constitution," and careful provisions for determin- 
ing the qualifications of voters and for insuring an honest and 
complete vote. 

The vote in the House on this substitute for the Senate bill 
was 120 to 112. 

§ 519. The two houses being thus at variance, and refusing 
to agree, a committee of conference was appointed in the House 
by the casting vote of the Speaker, by which a bill was reported 
commonly known as the " English Bill," which was accepted by 
both houses April 30th, 1858, and became a law. 

Although, as we have seen, strict principle did not require the 



HOW CONSTITUTIONS SHOULD BE SUBMITTED. 475 

submission of the Constitution, by Congress, to the inhabitants 
of the Territory at all, yet, as that body undertook, by the Eng- 
lish Bill, to make such submission, it would be expected some 
mode would be adopted that should be fair and adequate. 
Such, however, was not the fact. After reciting the framing of 
the Constitution, and that the Ordinance accompanying it, con- 
taining propositions in behalf of the Territory for the accept- 
ance of Congress, was unacceptable to the latter, the Act pro- 
vided that the State of Kansas should be admitted into the 
Union under said Constitution, when its people should have 
voted to accept the proposition thereby made, which was two- 
fold, first, donating to the new State, with great liberality, pub- 
lic lands, salt-springs, and the proceeds of the sales of the pub- 
lic domain within its limits, for various public purposes ; and, 
secondly, limiting, in the terms usual in such Acts, the power 
of the State to interfere with the primary disposal of the lands 
of the United States, or to tax said lands or the property of 
the United States. The Act then provided, that at said elec- 
tion the voting should be by ballot, and by indorsing on his 
ballot, as each voter might be pleased, " Proposition accepted," 
or " Proposition rejected ; " and that, if a majority of the votes 
should be for " Proposition accepted," the President of the 
United States should by proclamation announce the same, and 
the State thereupon, without further action of Congress, should 
become one of the States of the Union. But, should a major- 
ity of the votes cast be for " Proposition rejected," the Act 
further provided, that it should be deemed and held., that the 
people of Kansas did not desire admission into the Union with 
said Constitution., under the conditions set forth in said proposi- 
tion, in which event they were authorized to form for themselves 
a Constitution and State government, whenever, and not before, 
it should be ascertained by a census duly and legally taken, that 
the population of said Territory equalled or exceeded the ratio 
of representation required for a member of the House of Repre- 
sentatives of the Congress of the United States, which, at that 
time, was one representative to 93,340 inhabitants. 

The mode of submission thus skilfully devised was objec- 
tionable on three grounds : first, it was a submission in solido 
of an entire Constitution, generally acceptable, perhaps, but 
containing one or more clauses which were obnoxious to a large, 



476 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 

if not to the major, part of the State. But, lest hostility to the 
clause establishing slavery should lead to the rejection of the 
whole instrument, and thus the opportunity be lost of bringing 
into the Union another slave State, there were provided, sec- 
ondly, a bribe^ to induce a favorable vote — the proposition 
above described containing unusually liberal donations of pub- 
lic lands to the State, in case it should accept the whole scheme 
— a proffer morally as nefarious as that made by Satan to the 
Saviour of mankind, of all the kingdoms of this world, if He 
would bow down and worship him ; and, thirdly, a threat, to 
deter from its rejection, involved in that provision of the Act, 
which authorized the Territory to frame another Constitution 
only when its population should be at least 93,340, — a condi- 
tion which, if enforced, might exclude it from the Union for years. 

§ 520. It is needless to say, that the inhabitants of Kansas 
contemned both the bribe and the threat, and rejected the Con- 
stitution finally, by an overwhelming vote. 

In reviewing these proceedings, the wonder is, that Congress, 
having the power to admit the Territory, without submitting to 
its inhabitants at all, the Constitution, certified to it by a Con- 
vention of its people, as having been regularly adopted, should 
have thought it worth while to commit a piece of injustice so 
elaborate and so useless, as was involved in this act. But that 
it did so, indicates unmistakably, that the true principles of 
Constitution-making, one of which is, that submission should 
be made of every proposition to change or to establish a funda- 
mental law, to those to be affected thereby, were well understood, 
and that those principles, upon an equitable view, were thought 
to cover as well the case of Territories, notwithstanding their 
condition of pupilage or subjection, as of States exercising the 
rights of sovereignty. The reason for the course taken by Con- 
gress was that, under the inspiration of pro-slavery fanaticism, 
it desired, while it seemed justly and fairly to apply those prin- 
ciples, in reality to trample them in the dust, in order that slavery 
might be planted on the soil of Kansas. Happily, however, " the 
engineer was hoist with his own petar " — a measure intended 
to fasten slavery upon the Union forever, was the step too far, 
which, inaugurating a bloody revolution, resulted in giving the 
death-blow to that institution itself. The lesson thus learned, 
at such infinite cost, exemplifying the maxim that " honesty is 



PROMULGATION OP CONSTITUTIONS. 477 

the best policy," is not likely to be soon forgotten. It has already 
been productive of good ; for, since the discussions upon the ad- 
mission of Kansas into the Union, all enabling Acts contain 
minute provisions for taking fairly the sense of the inhabitants 
of the territories upon the Constitutions thereby authorized to 
be framed. 

§ 521. V. It now remains only to consider briefly the crown- 
ing act by which changes in the fundamental law are consum- 
mated, or the results of submission certified and announced. 
The necessity of some such act, which should be authentic and 
final, is apparent, when it is considered that, without it, painful 
embarrassments might arise, in the minds of both governors and 
governed, as to their powers or duties in particular cases. It is 
obvious, also, that the announcement that a new organic law or 
code of laws had been adopted and put in force, ought to ema- 
nate from some department of the existing government. 

In the case of the ordinary statute law, the necessity for an 
authentic promulgation is always recognized, and it is carefully 
provided for. Before such a law can take effect, it must, by our 
Constitutions, have been separately passed by the two houses 
of the legislature, have been signed by their respective Speakers, 
and by the Executive ; and, finally, must await the arrival of the 
day fixed for it to become in force. In the mean time provision 
is made for publishing it throughout the sphere of its operation. 
With all this extreme care, doubts not unfrequently arise whether 
or not a particular law was so passed as to be legally binding. 
To give still greater certainty, therefore, it is commonly required, 
that the various steps, as well legislative as executive, taken in 
the progress of a bill to a law, shall be made matters of record, 
so that courts and individuals interested may always determine 
with precision whether any proposition did or did not become a 
law. If such particularity and caution are necessary in ordinary 
statutes, of which the effects are temporary and partial, they 
would seem to be proportionately more so, when the laws are 
fundamental, and their effects permanent and general. In look- 
ing, however, at the precedents, we fail to find in many cases a 
conformity to the requisites of sound principles, while there is 
apparent, in regard to them, an amount of ignorance or indiffer- 
ence, for which it is difficult to account. 

§ 522. Of some of the earliest Constitutions, proclamation 



478 PROMULGATION OF CONSTITUTIONS. 

was made by a solemn act of the public authorities, accompa- 
nied by appropriate ceremonies. Thus, in the case of the New 
York Constitution of 1777, adopted in Convention April 20th, 
publication was made on the 22d of the same month, at the 
Court- House in Kingston, " from a platform erected on the end 
of a hogshead," the vice-president of the existing government 
presiding. The revised Constitution of New Hampshire of 
J 783, " was introduced at Concord by a religious solemnity ; " 
and that of Pennsylvania of 1790, by an imposing procession 
of all the officers of the State, the members of the Convention, 
and of the civic societies of Philadelphia, in the course of which 
the Constitution was formally proclaimed at the Court- House in 
Market Street. 

The above were all instances of Constitutions put in opera- 
tion without submission, except that of New Hampshire of 
1783. Where submission to the people has been made, the 
course very generally adopted has been to require the returns of 
the election to be made from the several districts to the Secre- 
tary of State, to be canvassed by him and the other great offi- 
cers of the State, often in the presence of such citizens as may 
choose to witness the proceeding; and, finally, the results of the 
canvass have been announced to the people by a proclamation 
of the Governor — the Constitution thereupon taking effect as 
such.^ In many cases the Constitution has required that the 
people should vote for or against the Constitution, and, if there 
should be a majority for it, the Governor should make proclama- 
tion of that fact, but provided no mode of certifying the returns 
of the election to that officer.^ In the two last Conventions of 
Virginia, in 1829 and 1850, and in that of Maryland of 1864, 
provision was made merely for a proclamation of the result of 
the election by the Governor.^ 

1 This course was pursued in the following Conventions: — New York, 1821 ; 
Louisiana, 1844, 1852, and 1864; Illinois, 1847 and 1862; Michigan, 1850; 
California, 1849; Tennessee, 1834; Ohio, 1850; and Oregon, 1857. 

3 It was so done in North Carolina, 1835; Texas, 1845; Wisconsin, 1848; 
and Iowa, 1857. 

3 In the last-named State, a question arose in 1864 respecting the nature of 
the power given to the Governor by the Convention Act to pass upon the 
returns of the election at which the Constitution of that year was voted on by 
the people, which has been the subject of adjudication by the Court of Appeals 
of that State. 



PROMULGATION OF CONSTITUTIONS. 479 

§ 523. Some of the above modes of announcement are suffi- 
ciently indefinite. Others have been practised, however, that 
are still more so. Thus, in the Maryland Convention of 1850, 
and that of Minnesota of 1857, the Schedules merely provided 
that, if a majority of all the votes cast should be for the Con- 
stitutions submitted, the same should be deemed to be adopted 
as the Constitutions of those States respectively. The Massa- 
chusetts Convention of 1779, and that of Kentucky of 1849, 
adopted still a different mode of announcing the result of the 
submission to the people. Having matured their respective 
Constitutions, and provided for a vote of the people upon them 
on a certain day, they adjourned to a day subsequent to that 
fixed for the election, at which time they reassembled, received 
the returns of the elections, and announced their results to the 
people by proclamation. A different mode was adopted by the 
last two Conventions of Massachusetts — those held in 1820 and 
1853. The returns of the elections were made to the Secretary 
of the Commonwealth, were canvassed, and the votes counted 
by committees of the Conventions, appointed for that purpose 
previously to their dissolution, and proclamation of the results 
made by the Governor. In the Pennsylvania Convention of 
1837, the returns of the elections were opened by the Speaker 
of the Senate, in joint session of the two houses, the result pub- 
licly announced by him, and a formal certificate of that fact 
made and filed among the public archives. 

The Constitution having been submitted to the people under regulations 
restricting the right to vote, within the State, to qualified electors who should 
have taken a prescribed oath, but permitting soldiers in the service of the 
United States to vote outside the limits of the State, the returns of the election 
coming into the hands of the Governor to be counted, an application was made 
to the Superior Court of Baltimore City for a rule upon the Governor to show 
cause why a mandamus should not be issued commanding him, in ascertaining 
the number of votes cast at the said election, to count certain votes tendered 
and rejected because the required oath had not been taken, and to exclude cer- 
tain others cast by soldiers beyond the limits of the State. 

The application being refused, the case was carried to the Court of Appeals, 
by which the judgment of the court below was affirmed, a majority of the court 
holding that the power to pass upon the returns in such a case was a political 
and not a judicial power, and, therefore, was not subject to revision by the judi- 
cial tribunals. See Miles v. Bradford, Governor of Maryland, 22 Md. R. 1 70, 
(decided at the June Term, 1864.) For a complete statement of the facts of 
this case, including the proceedings in the court below, see Deb. Md. Conv. 1864, 
Vol. HI. Appendix. 



480 PROMULGATION OP CONSTITUTIONS. 

§ 524. In case of the Territories, the proper authority to make 
the announcement is evidently the government of the Union, 
representing the people thereof. Accordingly, the mode of offi- 
cially making known the establishment of a new Constitution, 
and the contemporaneous birth of a new State, is for Congress 
either to pass an Act reciting the framing of the Constitution, 
that it is republican in form, and concluding with a declaration 
that the Territory is thereby admitted into the Union, or to an- 
ticipate the action of the Territorial Convention by providing 
that such a body might meet to frame a Constitution and State 
government, or to accept conditions of admission into the Union 
imposed by Congress, — their Constitution having been already 
formed, — and that, thereupon, if the action of the Convention 
should be favorable, its results should be announced by a procla- 
mation of the President, and the admission of the Territory into 
the Union be complete. 

Of all the modes of announcement above described, that by 
a formal proclamation is clearly the most conformable to theo- 
retical principles, and the most satisfactory in a practical point 
of view. From this there is, however, a descent through various 
gradations until modes of promulgation are reached, which are 
so indefinite and so 'inadequate, that it seems a matter of the 
greatest good fortune that serious embarrassments have not fol- 
lowed their adoption. Thus, take the cases in which it was 
provided that the Constitutions should go into effect, if adopted 
by a majority of the votes cast at an election on a day fixed, 
but in which no provision whatever was made for a canvass of 
the returns of the election, or for a promulgation, by some recog- 
nized official authority, of its results. That disputes have not 
arisen involving the validity of the fundamental Acts thus loosely 
ushered into the world, is due, not to the sufficiency of the pro- 
cesses by which they were promulgated, but to the peace and 
order of the times, and the utter absence of motive to raise, 
respecting their validity, even a doubt. 



CHAPTER VIII. 

§ 525. As the plan of this treatise extends only to a discus- 
sion of the Convention, the mode of initiating or calling, and 
of organizing it, its functions, powers, and modes of proceeding, 
the foregoing chapters would seem to complete the circle, and 
to render improper the consideration of other topics not strictly 
within that plan. But while this is, in the main, true, it may, 
nevertheless, be useful to touch upon the subject of constitu- 
tional provisions for amending Constitutions. And, in one view 
of it, a discussion of that topic may be regarded as logically 
involved in an exhaustive treatise upon the Convention system. 
We have seen, that the creation or renovation, by an organized 
political society, of its Constitution of government, is analogous 
to the exercise of the procreative function in animals — obvi- 
ously, an important topic in their natural history — and, as the 
Convention is the principal organ through which the political 
body effects changes in its Constitution, whether extending to its 
transformation or to its mere reparation, no discussion of that 
organ would be complete which should overlook the Constitu- 
tional provisions regulating its use and operation, or which 
should omit to state its excellences and defects as compared 
with those of other modes of attaining the same ends. 

§ 526. By the principles of general law, the right of a people, 
at any time, to recast their political institutions, cannot be de- 
nied. The questions upon which difficulties arise, are, as to the 
extent to which it may be done, under given circumstances, 
without endangering the entire system, as to the modes of doing 
it, and the instruments through which it shall be effected. These 
questions, recurring under all forms of government, receive vari- 
ous answers, according to their respective circumstances and 
conditions. The cluster of States forming the American system 
are so dissimilar to those of Europe, in any age, that little light 
can be drawn, in this respect, from the practice of the latter, or 

31 



482 AMENDMENT OF CONSTITUTIONS. 

from the writings of their statesmen and publicists. Between 
England and the United States, there is, it is true, the sympathy 
of race, and the institutions of the former were the model after 
which those of the latter were built ; but the imitation was not 
close, and in many of their most important features the institu- 
tions of the two countries are as variant as are those of England 
and Austria. The provisions of the English Constitution for 
effecting changes in itself are unique, being the fruits of the 
signal victory by which the Parliament in 1688 became the dom- 
inant power in the realm. Ever since that revolution, to that 
body has been conceded the power to enact fundamental, as it 
does the statute laws, by bill passed through the regular stages 
of legislation, and approved by the sovereign. 

In America it was early felt in many of the States that 
although the governments succeeding to the colonial establish- 
ments were based upon the will of the people, limitations must 
be imposed upon the latter in regard to amending their Consti- 
tutions. The wisest statesmen of the time saw that, in a 
country where the people were admitted to a direct participa- 
tion in the government, party passions and interests would be 
likely to lead to too much tampering with Constitutions, if 
eflfectual checks were not interposed. They, therefore, framed 
governments which, in this particular, departed from the Eng- 
lish model. Their Constitutions, purporting to define the 
powers of the several branches of the government, in no case 
permitted definitive amendments by the legislature, and most of 
them omitted all mention of the power of amendment. A few, 
as the Articles of Confederation, the Federal Constitution, and 
those of Maryland and of Delaware, framed in 1776, gave that 
power to the legislature, but under restrictions which reduced it 
far below the power so familiar to our fathers in the Parliament ; 
and two made provision for Conventions to be called for that 
purpose, also under restrictions, — those of Pennsylvania and 
Vermont. 

§ 527. But it would be wrong to imagine the existence among 
the people of the United States, during the Revolutionary 
period, of a ripened public opinion on the subject of amending 
their Constitutions. There was, even in the States most noted 
for their steadfast zeal in the cause of liberty, a great lack of 
sound views of the power of the people over the institutions 



AMENDMENT OF CONSTITUTIONS. 483 

they had founded, and of the safe methods of perfecting them. 
Thus, in Massachusetts, whose first Constitution contained no 
provision for amendments, the doctrine of the Revolution, that 
governments were founded by the people, and could be amended 
by them as they should think fit, was erroneously understood 
to warrant tumultuous assemblages of citizens, without legal 
authority, to dictate to the government not only its current 
policy, but amendments of the fundamental law. Shay's Rebel- 
lion was the natural outgrowth of such views, quickened, doubt- 
less, by the distress almost universal in a community not yet 
recovered from the effects of a long war.^ The first batch of 
American Constitutions, moreover, were many of them framed 
in extreme haste, for temporary purposes, when little was 
thought or known of the best modes of constructing or amend- 
ing such instruments. In several instances the State govern- 
ments were intended to be mere provisional organizations, to be 
laid aside, not when new and better ones should be provided? 
but upon the expected contingency of a peace with England, 
following as a consequence of a redress of grievances. The re- 
sult was, that- the Constitutions first framed generally contained 
no provision for their future amendment, since the necessity of 
amendment was not at that time apprehended. 

§ 528. But silence upon a subject of such importance was 
liable to misconstruction, and was therefore dangerous. Hence 
the policy of regulating by express constitutional provisions the 
exercise of so important a power soon began to be generally 
apparent. In several of the States the clauses of the Constitu- 
tions relating to amendments have been couched in negative 
terms, interdicting amendments except in the cases and modes 
prescribed. In a majority of the cases, however, they have 
been permissive, pointing out modes in which Conventions m§iy 
be called, or specific amendments effected, without terms of 
restriction, or allusion to other possible modes. 

But however liberal these provisions may seem to be, restric- 
tion is really the policy and the law of the country. By the 
common law of America, originating with the system we are 
considering, and out of the same necessities which gave the lat- 
ter birth, it is settled, that amendments to our Constitutions are 
to be made only in modes pointed out or sanctioned by the 
I Curtis' Hist. Const. U. S., Vol. I. pp. 261-264. 



484 AMENDMENT OF CONSTITUTIONS. 

legislative authority, the legal exponent of the will of the ma- 
jority, which alone is entitled to the force of law.^ The mode 
usually employed is that of summoning a Convention ; and it 
is doubtful if any means are legitimate for the purpose indi- 
cated but Conventions, unless employed under an express war- 
rant of the Constitution. The idea of the people thus restrict- 
ing themselves in making changes in their Constitutions is orig- 
inal, and is one of the most signal evidences that amongst us 
liberty means not the givirig of rein to passion or to thought- 
less impulse, but the exercise of power by the people for the 
general good, and, therefore, always under the restraints of law. 
§ 529. But, while the framers of our Constitutions have 
sought to avoid the dangers attending a too frequent change 
of their fundan*elltal codes, they have adverted to an opposite 
danger, to be equally shunned — that of making amendments 
too difficult. With a view to obviate this danger, in all our 
late Constitutions there have been inserted special provisions, 
the tenor of which will be explained hereafter. The general 
principle governing their selection, and, in truth, lying at the 
foundation of the whole subject, as a branch of practical poli- 
tics, is this : Provisions regulating the time and mode of effect- 
ing organic changes are in the nature of safety-valves, — they 
must not be so adjusted as to discharge their peculiar function 
with too great facility, lest they become the ordinary escape- 
pipes of party passion ; nor, on the other hand, must they dis- 
charge it with such difficulty that the force needed to induce 
action is sufficient also to explode the machine. Hence the 
problem of the Constitution-maker is, in this particular, one of 
the most difficult in our whole system, to reconcile the requisites 
for progress with the requisites for safety.^ This problem can- 

1 See Curtis' Hist Const. U. S., Vol. I. pp. 261-264. 

2 Mr. John Stuart Mill thus states the problem : — " Ko government can 
now expect to be permanent unless it guarantees progress as well as order ; nor 
can it continue really to secure order unless it promotes progress. It can go on, 
as yet, with only a little of the spirit of improvement. While reformers have 
even a remote hope of effecting their objects through the existing system, they 
are generally willing to bear with it. But, when there is no hope at all, — 
when the institutions themselves seem to place an unyielding barrier to the 
progress of improvement, — the advancing tide heaps itself up behind them till it 
bears them down." — The French Revolution and its Assailants, in "Miscel- 
lanies." 



DIFFERENT MODES OF AMENDING CONSTITUTIONS. 485 

not be yet regarded as solved, though we are doubtless approxi- 
mating to a solution. Every new Constitution gathers up the 
fruits of past experience, and in turn contributes something 
to the common stock. We have reached such a stage that 
the provisions of our latest Constitutions may be considered 
as adequate to all ordinary exigencies of our condition. No 
community of American citizens would be badly provided for, 
were it compelled to accept any one of a score of Constitu- 
tions now in force amongst us, without modification, save in 
unimportant particulars depending on provisions merely local 
in effect. 

§ 530. Having thus formed a general conception of the doc- 
trine of amendments in the American system, I pass to inquire, 
— I. What modes have been provided by our various Constitu- 
tions for effecting them ? II. What are their comparative ex- 
cellences and defects ? 

I. There are two modes of effecting amendments, thus far 
devised : first, that by the agency of Conventions ; and, sec- 
ondly, that by the agency of our General Assemblies, without 
Conventions — both regularly followed by a ratification by the 
people. 

Of the whole number of our Constitutions to which I have 
had access,^ forty-four have contained provisions for making 
amendments through Conventions, and forty-three through the 
intervention of the legislature, — commonly called the specific 
mode, from the fact that it is used for effecting specific amend- 
ments, generally few and relatively unimportant. Of the forty- 
four which have provided for Conventions, twenty have provided 
also for amendments by the specific mode, so that these latter 
figure in both lists. Stating the result in another way, twenty- 
four Constitutions have contained provisions a thorizing the call 

I The number of Constitutions is obviously less than that of Conventions, 
since many of the latter have framed no Constitutions, but only amendments, 
of so little importance that they have not been incorporated in their respective 
Constitutions, but merely appended to them ; and many which have framed so- 
called Constitutions have been revolutionary bodies, for which reason the results 
of their labors have been repudiated as of no validity, and I make no account 
of them. 

A considerable number of Constitutions, moreover, known to exist, I have 
not been able, after much research, to find at all. I have succeeded in ferret- 
ing out about eighty, referred to in the next succeeding note. 



486 PRECEDENTS. 

of Conventions only ; twenty -three, authorizing the enactment 
of amendments in the specific mode only ; and twenty, in 
both modes. Beside these, ten Constitutions known to me 
have contained no provision whatever relating to the subject ; 
and one, that of Georgia of 1777, contained provisions for that 
purpose, but of what nature I have been unable to ascertain.^ 

§ 531. From the foregoing statement, it is evident that the 
two modes of amending Constitutions are of about equal an- 
tiquity and about equal authority. The specific mode origi- 
nated with the Continental Congress, and its particulars were, in 
that case, determined by the relations of the Confederation to 
the States. The mode of amending or revising by Conventions 
called for that purpose, was first adopted by Pennsylvania in 
1776, from which State it was, in the following year, borrowed 
by Vermont. These two modes, devised thus in the first years 
of our independence, have kept pretty equal pace throughout 
the whole range of our constitutional history, some Constitu- 
tions adopting one mode and some the other ; but, for the first 

1 The Constitutions comprised in the various classes indicated, with the dates 
at which they were framed, are shown in the following lists — reckoning as 
Constitutions as well amendments as complete revisions : — 

1. Constitutions which have authorized amendments through Conventions 
only: — Those of Pennsylvania, 1776; Vermont, 1777, 1786, 1793, 1822, 
1828, 1836, 1843, 1850, and 1857 ; Georgia, 1789 ; Kentucky and New Hamp- 
shire, 1792; Tennessee, 1796 ; Kentucky, 1799 ; Ohio, 1802; Louisiana, 1812; 
Indiana, 1816 ; Illinois, 1818 ; Iowa, 1846 ; Kentucky, 1849 ; New Hampshire, 
1850; Maryland, 1851 ; Kansas, 1857. 

2. Constitutions authorizing amendments in the specific mode only : — Those 
of Maryland and Delaware, 1776; the Articles of Confederation, 1781; the 
Constitutions of Georgia, 1798 ; Connecticut, 1818 ; Alabama and Maine, 1819 ; 
Missouri, 1820; Massachusetts and New York, 1821; Mississippi, 1832; Ten- 
nessee, 1834 ; Arkansas, 1836 ; Pennsylvania, 1838 ; Rhode Island, 1842 ; New 
Jersey, 1844 ; Louisiana and Texas, 1845 ; Missouri, 1846 ; Indiana, 1851 ; 
Louisiana, 1852; Oi-egon, 1857; Missouri, 1865. 

3. Constitutions authorizing amendments in both modes : — Those of the 
United States, 1787 ; Delaware, 1792 and 1831 ; and Michigan and North Car- 
olina, 1835; Florida, 1839; New York and Wisconsin, 1846; Illinois, 1847; 
Wisconsin, 1848; California, 1849; Michigan, 1850; Ohio, 1851; Massachu- 
setts, 1853 ; Kansas, 1855 ; Minnesota and Iowa, 1857 ; Kansas, 1859; Illinois, 
1862 ; West Virginia, 1863. 

4. Constitutions containing no provisions on the subject : — Those of Virginia, 
New Jersey, North Carolina, and New Hampshire, 1776; New York, 1777; 
New Hampshire, 1779 and 1783; Pennsylvania, 1790; and of Virginia, 1830 
and 1851. 



EXCELLENCES AND DEFECTS OF THE MODE BY CONVENTIONS. 487 

sixty years, only two authorizing both modes, that of the United 
States of 1787, and that of Delaware of 1792. During the 
period beginning with 1830 and ending with 1865, however, 
nine Constitutions have provided for amendments by Conven- 
tions only, twelve in the specific mode only ; and nineteen in 
both modes, showing a growing conviction that the specific 
mode has advantages which make its more general adoption 
seem desirable, and yet that it alone is not adequate to the ex- 
igencies of the times, but needs to have coupled with it a pro- 
vision for a Convention when the people should deem it necessary 
or expedient to make a general revision of the Constitution. 

§ 532. II. To determine the excellences and defects of these 
two modes of amending Constitutions, they must be considered 
with reference to their tendency, respectively, to prevent or to 
alleviate the three great evils of popular government, — hasty 
legislation, excessive legislation, and partisan legislation. Let 
us consider, from this point of view, — 

(a). The mode by Conventions. 

It is obvious that, were the existing government of a State, or 
any branch of it, invested with the power, without condition or 
limit, to call Conventions to change the organic law, there 
would be cause to apprehend two dangers : one, that the per- 
manent, and, therefore, paramount and sacred character of that 
law would be impaired ; for, what the government could at any 
time procure to be changed or repealed, would, in effect, be but 
an, ordinary statute ; the other, that our Conventions would be- 
come the arenas, and our Constitutions the objects as well as 
the instruments, of party conflict. The right of the people, at 
any time to amend their Constitutions must be admitted ; but 
as they can never do this directly, the necessity becomes appar- 
ent of checks, to render it probable that a movement to that 
end has been sanctioned by them, and that it has been done 
upon due consideration. What those checks should be, is a 
problem of which the conditions will vary with the circum- 
stances of the case. In this country, the difference between 
States which differ most is but slight, and hence the results of 
their individual experience are in the main equally useful to all. 
Conventions being universally called amongst us by legislative 
authority, the checks must be such as will obviate the evils 
above enumerated, resulting from haste, excess, and partisan 
zeal, in legislation. 



488 EXCELLENCES AND DEFECTS OP THE MODE BY CONVENTIONS. 

§ 533. The readiest mode of preventing these evils is either 
to increase the majority required to call a Convention, or to 
compel the submission of the legislative Act, passed for that 
purpose, to the people, before it shall take effect. 

The first of these checks would doubtless be efficacious, un- 
less the minority, invested with a veto upon the Act, were too 
small. On most questions, of whatever magnitude or character, 
if the vote of a party were sufficient to determine results, it 
would be likely to be cast as the interest of the party should re- 
quire. In the see-saw of politics, it is rare that a party very much 
or very long outnumbers its antagonist. Hence, if party major- 
ities were allowed free scope to tamper with our organic laws, 
there would be nothing stable in them. On the other hand, if 
a reform of the fundamental code be really needed, men of all 
parties will admit the fact, or enough men in all parties to carry 
it. Should the proposed amendments, however, assume a parti- 
san character, or for any other reason be improper to be made 
now, or at all, there should be no room for danger of their 
adoption. It seems evident, then, that where the check is 
sought in numbers, a majority is too small, and a unanimous 
vote too large, for either practicability or safety. A mean must 
be sought not liable to these objections, and that not from a 
priori considerations, but from experience. What that mean 
has generally been in the practice of the several States, will be 
seen further on. 

§ 534. The second check, which is found in a submission of 
the question of calling a Convention to the people, seems more 
efficacious. By the term " people " is meant, theoretically, the 
political society, but practically, as we have seen, the body of 
the electors, which is its representative, at the nearest hand. The 
views of the latter, expressed in any mode adapted to its organ- 
ization, may more fairly be presumed to be those of the political 
society than those of any body less numerous and further re- 
;' moved from it ; and, therefore, whenever the electors have 
'(iassented to the call of a Convention, its necessity or eminent 
■propriety may be considered to be beyond doubt. Such a body 
may be swayed by passion, but it will be by a passion that is 
national. A State, in which the passion of a majority of its 
electors, on high questions of fundamental law, is selfish and 
local, must be near its downfall. At all events, when a legisla- 



EXCELLENCES AND DEFECTS OF MODE BY CONVENTIONS. 489 

ture is required to submit the question of the expediency of 
constitutional changes to the determination of a body that 
never assembles, that is not easily approached for unworthy 
purposes, and that is, this side the sovereign itself, the ultimate 
depositary of sovereign rights, there is one chance the more that 
such changes will not be ill-advised. That such a question 
ought in all cases to be submitted to the people, has been 
affirmed by what will be conceded to be high authority. The 
point arose in New York the year preceding the Convention of 
1821. At an extra session of the legislature in November, 1820, 
an Act had been passed by both houses, by the provisions of 
which a Convention was to be called, withotit referring the 
question, in the first instance, to the people, — the delegates to 
be chosen in February, 1821, and the body to convene in June 
following. This Act having been submitted to the Council of 
Revision, composed of the Governor, the Judges of the Supreme 
Court, and the Chancellor, — a body invested by the Constitu- 
tion with a negative on all Acts of the legislature, to be over- 
come only by a two-thirds vote of both houses, — it was re- 
turned with their objections, and thereupon failed to become a 
law. The objections were drawn up by Chancellor Kent, and 
received the concurrence of Governor Clinton and Chief- Justice 
Spencer, a majority of the Council. The first objection was 
stated to be, because the Act recommended to choose " dele- 
gates to meet in Convention for the purpose of making such 
alterations in the Constitution" as they might think proper, 
" without first having taken the sense of the people, whether 
such a Convention, for such a general and unlimited revisal and 
alteration of the Constitution," was, "in their^ judgment, neces- 
sary and expedient." Admitting as undoubted and as inde- 
feasible the right of the people at all times to alter their Consti- 
tution, as to them should seem meet, the Council expressed 
great doubt whether it belonged " to the ordinary legislature, 
chosen only to make laws, in pursuance of the provisions of the 
existing Constitution, to call a Convention, in the first instance, 
to revise, alter, and perhaps remodel the whole fabric of the gov- 
ernment, and before they have received a legitimate and full 
expression of the will of the people that such changes should be 
made." They remark, with great justice, that " the Constitu- 
tion is the will of the people, expressed in their original charac- 



490 CONSTITUTIONAL PROVISIONS 

ter, and intended for the permanent protection and happiness of 
them and their posterity ; and," they add, " it is perfectly con- 
sonant to the republican theory, and to the declared sense and 
practice of this country, that it cannot be altered or changed in 
any degree, without the expression of the same original will." 
The Council conclude by showing that in many of the Consti- 
tutions thus far framed in the leading States of the Union, it 
has been explicitly provided that no Convention should be 
called but by the concurrence of the people, expressed at an 
election at which the question of calling one should have been 
distinctly presented.^ 

§ 535. The wisdom of this decision it is impossible to doubt. 
How far it conforms to the constitutional practice of the coun- 
try may be inferred from an examination of precedents, to 
which I now pass. 

The provisions of our Constitutions relating to this subject 
are of three varieties : first, such as look to a periodical expres- 
sion of the sense of the people on the question of calling a Con- 
vention ; secondly, such as look to a vote of the people on the 
question, whenever the legislature should have declared it ad- 
visable that a Convention should be called ; and, thirdly, such 
as restrict the calling of a Convention within defined bounds 
and in negative terms — all three varieties, however, with two 
exceptions, to be hereafter noted, vesting the power to call only 
in the legislature. 

1. Of the first variety, the earliest instance is presented by the 
Pennsylvania Constitution of 1776, which provided for the call 
of a Convention every seventh year after its adoption. New 
Hampshire, in her^ Constitution of 1792, adopted the same term, 

1 For the whole of this very valuable document, see Appendix B. 

Another check upon the calling of Conventions, mentioned by Mr. Madison, 
involves the concurrent action of any two of the three departments of the gov- 
ernment ; but, as it has never been employed, I have not enumerated it in the 
text. It is thus described by him : — " Another plan has been thought of, which 
might perhaps succeed better, and would at the same time be a safeguard to the 
equilibrium of the constitutional departments of the government ; that is, that a 
majority of any two of the three departments should have authority to call a 
plenipotentiary Convention, whenever they may think their constitutional pow- 
ers have been violated by the other department, or that any material part of the 
Constitution needs amendment." — Letter to John Brown (of Kentucky), dated 
Aug. 23, 1785, Madison's Works, Vol. I. p. 177. 



FOE CALLING CONVENTIONS. 491 

and has preserved it in all her subsequent revisions. The same 
plan, but with a different period, has been adopted by other 
States. Thus, the Wisconsin Constitution of 1846 authorized 
a vote of the people on the question every tenth year, and that 
of Indiana, of 1816, every twelfth year. In many cases a par- 
ticular year has been named in which a vote of the people was 
to be taken. The Georgia Constitution of 1789 authorized 
such a vote in 1794 ; that of Massachusetts of 1780, in 1795 ; 
and that of Kentucky of 1792, at the two successive elections 
in 1797 and 1798. The New York Constitution of 1846 pro- 
vided for taking the sense of the people in 1866 and every twen- 
tieth year thereafter; that of Vermont of 1777, in 1785 and 
every seventh year thereafter ; that of Massachusetts of 1853, in 
1873 and every twentieth year thereafter ; that of Ohio of 1851, 
in 1871, and every twentieth year thereafter ; ^ that of Michigan 
of 1850, in 1866, and every sixteenth year thereafter ; and that 
of Iowa of 1857, in 1870 and every tenth year thereafter. The 
last two Constitutions added a provision that a vote of the peo- 
ple upon the question of calling a Convention might also be 
taken at such other times as the legislature might by law pre- 
scribe. The Maryland Constitution of 1851 contained a pro- 
vision similar to those last named, making it the duty of the 
legislature, at its first session immediately succeeding the re- 
turns of every census of the United States thereafter taken, to 
pass a law for ascertaining the sense of the people in regard to 
calling a Convention for altering the Constitution. A novel 
provision for calling a Convention was made in the Massachu- 
setts Constitution of 1853, beside the one described above. Its 
terms were, that whenever towns or cities containing not less 
than one-third of the qualified voters of the Commonwealth 
should, at any meeting for the election of State officers, request 
that a Convention be called to revise the Constitution, it should 
be the duty of the legislature, at its next session, to pass an Act 
for the calling of the same, and submit the question to the 
qualified voters of the Commonwealth, whether a Convention 
should be called accordingly, saving, however, the power of the 

1 The adoption of the term of twenty years was probably based on the cal- 
culation of Mr. Jefferson, that the people of a State, as a body, was wholly re- 
newed once in about twenty years. See his Letter of July 12, 1816, to Samuel 
Kercheval, Jefferson's Works, Vol. VII. pp. 9-17. 



492 CONSTITUTIONAL PEOVISIONS 

legislature to take action for calling a Convention without such 
request, as before practised in the Commonwealth. 

§ 536. 2. The second variety, namely, that which looks to a 
vote of the people upon the question of calling a Convention, 
whenever such a step should seem to the legislature to be ad- 
visable, is exemplified in nearly all the other Constitutions 
which contain any provision on the subject. In this class of 
cases, it is obvious that the facility with which changes in the 
organic law can be effected is lessened. The legislature must 
first favor those changes ; and that body, elected under the ex- 
isting Constitution, may be opposed to any change. At all 
events, the legislature is a less numerous body than the electors, 
more liable to be swayed by passion or interest, and farther re- 
moved from the original source of all authority, the sovereign 
political body. But, on the other hand, the legislature is the 
creature of the electors. It may delay, but, as our Constitutions 
now regulate the suffrage, it cannot ordinarily long prevent such 
amendments as public opinion should have pronounced desir- 
able. In a majority of cases, the provisions in question are 
to the effect that, whenever two-thirds of each house,i or of 
all the members elected to each house,^ shall concur in the 
expediency of calling a Convention to revise the Constitution, 
they shall cause a vote of the people to be taken on the subject 
at the next general election ; and, if a majority of the people 
should vote in favor of such Convention, then the legislature, at 
its next session, shall call one. In a few cases, the provision 
has been for a vote of the people on the recommendation of 
" two-thirds of each house of the General Assembly," which has 
been held to mean two-thirds of a quorum of each house.^ In 
several instances only a majority vote has been required in the 
legislature, sometimes of the two houses,* sometimes of all the 

1 This was the provision in the following Constitutions: — Florida, 1839; 
California, 1849 ; and Minnesota, 1857. A similar provision appears in the 
Federal Constitution of 1787. 

2 This provision appeared in the following Constitutions : — - North Carolina, 
1835 ; Ohio, 1851; Illinois, 1847 and 1862; and Kansas, 1857 and 1859. 

3 State V. M'Bride, 4 Mo. R. 303 ; Green v. Waller, 32 Miss. R. (3 George) 
650. The Constitutions in which this phraseology is used are those of Tennes-. 
see, 1796, and Ohio, 1802. 

4 Constitutions of Wisconsin, 1848; and West Virginia, 1863. 



FOR CALLING CONVENTIONS. 493 

members elected to both houses,^ and sometimes, inferentially, 
a majority only of a quorum, — the phraseology being simply, 
that " whenever the General Assembly shall deem a Convention 
desirable," &c.2 

§ 537. 3. The cases comprised in the third variety are less 
numerous, namely, those in which restrictioias have been im- 
posed upon the call of Conventions, in negative terms. In 
most of the cases referred to, the restriction relates to the call- 
ing of Conventions without the concurrence of a vote of the 
people, or without a specified majority in the General Assembly. 
Thus, in the Constitutions of Delaware of 1792 and 1831, it 
was provided, that no Convention should be called but by the 
concurrence of the people, to be expressed, as the context shows, 
by a vote of the electors at an election held for that purpose. 
The North Carolina Constitution of 1835, and that of Florida 
of 1839, provided, that no Convention should be called unless 
by the concurrence of two-thirds of all the members elected to 
each house of the General Assembly. The first Constitution 
of Kentucky of 1792 authorized the call of a Convention, pro- 
vided the people should vote in favor of it, at the elections to be 
held in the years 1797 and 1798, and then added the restriction, 
that if it should appear, upon the ballot of either year, that a 
majority of the citizens voting for representatives was not in 
favor of a Convention being called, it should not be done, until 
two-thirds of both branches of the legislature should deem it ex- 
pedient. The Constitution of West Virginia, framed in 1863, 
surpasses all others in the number and rigor of its restrictive 
clauses. No Convention is to be called, " having power to 
alter the Constitution of the State," unless in pursuance of a 
law to take the sense of the people on the question of calling a 
Convention. No members of a Convention are to be elected 
until one month after the result of the poll shall have been as- 
certained and published ; all Acts and Ordinances of any such 
Convention are to be submitted to the voters of the State for 
ratification or rejection, and to have no validity whatever un- 
til they are ratified ; and in no event are they, by any shift 
or device, to be made to have any retrospective operation or 

1 Constitutions of Kentucky, 1799 and 1849; and Louisiana, 1812. 

2 Constitutions of Iowa, 1846 ; and Delaware, 1831. See State v. M'Bride, 
4 Mo. R. 303 ; Green v. Waller, 32 Miss. E. (3 George) 650. 



494 MODE OP AMENDING CONSTITUTIONS 

effect. A special interest attaches to the cases comprised in this 
variety, on account of an important constitutional question, 
considered elsewhere, to which they give rise, namely. Whether, 
under those instruments, amendments can be effected in any 
mode, or by any instrumentality, not pointed out by them ? ^ 

§ 538. (b.) The mode of effecting amendments to a Consti- 
tution through the agency of the legislature, without a Conven- 
tion, would seem to be the most natural, because the most 
simple one. Our fathers, as we have shown, were familiar with 
its use in England. The peculiar nature of our system, how- 
ever, made the adoption of the English mode, without mate- 
rial modifications, inadvisable, for by the latter constitutional 
changes are, as in case of ordinary legislation, the work of King, 
Lords, and Commons, acting in conjunction. In America, how- 
ever, fundamental legislation, even when carried on by our Gen- 
eral Assemblies, is conducted in a manner very different from 
ordinary legislation. As, in calling Conventions, the legislature 
acts under checks unknown to it when exercising its usual func- 
tion ; so here, the restrictions upon its action are so numerous 
and important, and the departures from the processes of ordi- 
nary legislation so wide, that it has been made a question 
whether, in proposing amendments to the organic law, the legis- 
lature is engaged in an act of legislation at all, — a question 
which it will become our duty in due time to consider. 

§ 539. Though this mode, under proper restrictions and in 
cases to which it is adapted, may be followed without danger, 
yet it is subject to obvious objections. The legislature is a body 
chosen for temporary purposes. It is a mirror of political pas- 
sions and interests, and, with the best intentions, cannot be 
expected to be free from bias, even in questions of the highest 
moment. It is composed, moreover, in general, of politicians 
rather than of statesmen. Indeed, if a man shows himself, by 
culture and the breadth of his views, to be fitted for the highest 
trusts, it is nearly certain that he will not be found in the legis- 
lature, but be left in obscurity at home. But, when a Conven- 
tion is called, it is sometimes possible to secure the return of 
such men. It is not necessarily because such a body is recog- 
nized to be, as it is, the most important ever assembled in a 
State, but because the measures it is expected to mature bear 
1 See j90si, §§564-574. 



THROUGH THE ACTION OF THE LEGISLATURE. 495 

less directly on the interests of parties or of individuals. Party- 
management, therefore, is not usually so much directed to the 
seeking of control of a Convention as of a legislature. Besides, 
the proper function of the latter body, that of municipal legis- 
lation, being one of the highest vested by the sovereign in any 
governmental agency, it cannot but be inexpedient, on a general 
view, that there should be added to it that of organic legislation, 
requiring different and !iigher gifts, and wider experience and 
study, thus threatening to unsettle the balance of the Constitu- 
tion.i 

§ 540. With proper safeguards, and under adequate checks, 
however, a legislature, as we have said, may be invested with the 
power of fundamental legislation without endangering the safety 
of the state. In point of convenience, such an arrangement 
possesses many claims to acceptance. The calling of a Conven- 
tion is a measure attended commonly by much delay and ex- 
pense, and is often compassed by very great difficulties. Reforms 
would often be foregone rather than resort to means so incon- 
venient. The amendments to our Constitutions are very com- 
monly of no great extent ; a doubt has arisen, perhaps, as to 
the construction to be put upon a particular clause ; a change 
may be desired in the qualifications for the suffrage, or in the 
basis of representation ; a branch of the administration is found 
to be too cumbrous for use; or a new distribution among the 
agencies of government of their constitutional powers is thought 
to be advisable to facilitate the transaction of business, or to 
render public operations more safe or more economical. For 
amendments of such a stamp, separately considered, the mode 
by legislative action is well adapted ; and it is adapted to no 
Other. It ought to be confined, in my judgment, to changes 
which are simple or formal, and, therefore, of comparatively 
small importance. For a general revision of a Constitution, or 
even for single propositions involving radical changes as to the 
policy of which the popular mind has not been informed by 
prior discussion, the employment of this mode is impracticable 
or of doubtful expediency. 

The checks proper to be applied to a legislature, acting in a 
conventional capacity, are not different from those applied where 

1 See Hildreth's Hist. U. S., Vol. I. 2d Series, p. 231 ; remarks of the author 
upon the South Carolina Constitution of 1790. 



496 MODE OF AMENDING CONSTITUTIONS 

it assumes to call a Convention. They consist of increased 
majorities, of repeated votes, and of publication and submission 
to the people. In many cases, as we shall see, all of these de- 
vices for preventing hasty action, are employed simultaneously. 
When measures are thus initiated deliberately, in a right spirit 
and for proper ends, the conditions of safe legislation seem 
to be fulfilled. 

§ 541. Of the forty odd Constitutio'ns which permit amend- 
ments by the specific mode, — that is, by combined legislative 
and popular action, without a Convention, — eleven contain 
substantially the following provision, copied from the Missis- 
sippi Constitution of 1832, which, in that particular, was doubt- 
less modelled after that of the United States.^ 

" Whenever two-thirds of each branch of the legislature shall 
deem any change, alteration, or amendment necessary to this 
Constitution, such proposed change, alteration, or amendment 
shall be read and passed by a majority of two-thirds of each 
house respectively, on each day, for three several days. Public 
notice thereof shall then be given by the Secretary of State, at 
least six months preceding the next general election, at which 
the qualified electors shall vote directly for or against such 
change, alteration, or amendment ; and, if it shall appear that 
a majority of the qualified electors voting for members of the 
legislature shall have voted for the proposed change, alteration, 
or amendment, then it shall be inserted by the next succeeding 
legislature as a part of this Constitution, and not otherwise," 

There are minor differences in the several Constitutions of 
this class. Thus, the restrictive clause at the end is not usually 
inserted. The other points of difference relate to the majority 
of the legislature required to recommend a change, and the 
length of the notice to be given. Thus, in the Constitutions of 
Louisiana, 1845, and Ohio, 1851, the vote required was three- 
fifths of the members elected to each house ; in that of Louisi- 
ana, 1864, it was a majority. In the others it was two-thirds. 
The length of time required for the notice to the people was 
generally three instead of six months. Th-at of Louisiana of 
1864, however, required only thirty days, and those of Michigan 

1 The Constitutions referred to are the following : of Mississippi, 1832 ; 
Maine, 1819: Wisconsin, 1846 and 1848; California, 1849; Michigan, 1850; 
Louisiana, 1845, 1852, and 1864; Ohio, 1851 ; and Kansas, 1859. 



THROUGH THE ACTION OP THE LEGISLATURE. 497 

of 1850, and of Maine of 1819, no notice at all. In the Kansas 
Constitution of 1859, the notice of three months was required 
to be given by publication in at least one newspaper in each 
county in the State where a newspaper was published. 

§ 542. Of the Constitutions referred to, twenty-five contained 
provisions in the main similar to the following taken from the 
Connecticut Constitution of 1818: — 

" Whenever a majority of the House of Representatives shall 
deem it necessary to alter or amend this Constitution, they 
may propose such alterations or amendments ; which proposed 
amendments shall be continued to the next General Assembly, 
and be published with the laws which may have been passed at 
the same session ; and if two-thirds of each house at the next 
session shall approve the amendments proposed, by yeas and 
nays, said amendments shall, by the Secretary, be transmitted 
to the town clerk in each town in this State, whose duty it shall 
be to present the same to the inhabitants thereof, for their con- 
sideration, at a town-meeting, legally warned and held for that 
purpose ; and, if it shall appear in a manner to be provided by 
law, that a majority of the electors present at such meetings 
shall have approved such amendments, the same shall be valid, 
to all intents and purposes, as a part of this Constitution." ^ 

The initiation of amendments by this plan, it will be ob- 
served, is confined to the House of Representatives. In most 
of the Constitutions of this class, however, the right originally 
to propose them is given to either house of the General Assem- 
bly, or simply to the General Assembly ; after which, if they 
are agreed to by the requisite majority of each house, they are 
referred to the General Assembly next to be elected, and pub- 
lished, &c. In several instances the final act of submission to 
the people is dispensed with.^ As in the class last noted, there 
are considerable differences in respect of the majorities and the 

1 The Constitutions embraced in this class are, — of Maryland, 1776 ; South 
Carolina, 1790; Delaware, 1792 and 1831 ; Georgia, 1798 ; Connecticut, 1818 ; 
Alabama, 1819; Missouri, 1820; Massachusetts, 1821 and 1853; New York, 
1821 and 1846; Michigan, 1835; Tennessee, 1834; Arkansas, 1836; North 
Carolina, 1835; Pennsylvania, 1838; New Jersey, 1844; Rhode Island, 1842; 
Texas, 1845; Illinois, 1847 and 1862; Iowa and Oregon, 1857; and West 
Virginia, 1863. 

2 As in that of Maryland, 1776; South Carolina, 1790; Georgia, 1798; 
Delaware, 1792; and Florida, 1839. 

32 



498 MODE OP AMENDING CONSTITUTIONS 

length of notice required in the various cases, and in other 
minor particulars. In eight of the cases, both votes of the two 
houses — that preceding and that following the publication of 
the proposed amendments — were to be of two-thirds of each 
house,! a^f^(j j^ eight they were to be of a majority of the same.^ 
In two cases the votes were to be, the first of two-thirds, and 
the second of three-fourths ; ^ in two they were to be, the first 
of a majority, and the second of two-thirds;* in two, these last 
fractions were reversed;^ and in one, the first was to be of 
three-fifths and the second of two-thirds.^ In two cases, on the 
votes in the legislature, there were to be a majority of the Sen- 
ate and two-thirds of the House.'^ 

On the popular vote to ratify the action of the legislature, 
a majority was required in all the cases but that of Rhode 
Island, 1842, which made a vote of three-fifths of the people 
necessary. 

§ 543. There are a few cases which are not reducible to any 
rule, that it may be useful to note separately. The first of 
these is that of the Delaware Constitution of 1776, by Section 
XXX. of which it was provided as follows : — 

" No article of the Declaration of Rights and fundamental 
rules of this State, agreed to by this Convention, nor the first, 
second, fifth (except that part thereof that relates to the right of 
suffrage), twenty-sixth, and twenty-ninth articles of this Consti- 
tution ought ever to be violated, on any pretence whatever. No 
other part of this Constitution shall be altered, changed, or 
diminished, without the consent of five parts in seven of the 
Assembly, and seven members of the Legislative Council." ^ 

The Articles of Confederation provided, Article XIIL, that 

1 South Carolina, 1790; Georgia, 1798; Alabama, 1819; Missouri, 1820; 
Michigan, 1835; Arkansas, 1836; Florida, 1839; and Texas, 1845. 

2 New Jersey, 1844; Pennsylvania, 1838; New York, 1846; Khode Island, 
1842; Indiana, 1850 ; Iowa and Oregon, 1857; and West Virginia, 1863. 

3 Delaware, 1792 and 1831. 

4 New York, 1821; Tennessee, 1834. 

5 Illinois, 1847 and 1862. 

6 North Carolina, 1835. 

7 Massachusetts, 1821 and 1853. 

8 The Legislative Council consisted of nine members, so that five-sevenths 
of the Assembly and seven -ninths of the Council were necessary to amend the 
Constitution. 



THROUGH THE ACTION OF THE LEGISLATURE. 499 

no alteration should at any time be made in any of said articles, 
" unless such alteration be agreed to in a Congress of the 
United States, and be afterwards confirmed by the legislature 
of every State." 

The Federal Constitution provided still a different mode, 
though it bore in general a strong resemblance to the class first 
above mentioned, save in the mode of ratification by the people. 
It was as follows : — 

" Congress, whenever two-thirds of both houses shall deem it 
necessary, shall propose amendments to this Constitution .... 
which .... shall be valid to all intents and purposes as parts 
of this Constitution, when ratified by the legislatures of three- 
fourths of the several States, or by Conventions in three-fourths 
thereof, as the one or the other mode of ratification may be pro- 
posed by Congress." ^ 

1 In connection with this clause of the Federal Constitution, it may not be 
out of place to consider the animadversions of a late writer respecting the mode 
thus provided for effecting amendments to that instrument as contrasted with 
that pursued under the English Constitution. I refer to Fisher, in his interest- 
ing work, entitled Trial of the ConstUulion. Justly admiring the English Con- 
stitution, and naturally entertaining great solicitude for the public safety during 
the perilous times through which we were lately passing, that writer has pro- 
nounced the Constitution of the United States to be in comparison with it, inade- 
quate to a crisis like that of 1861-5, in that it does not contain a practicable 
provision for amendments. In his opinion, had the United States been in a 
condition to settle the vexed question of slavery through an amendment to its 
Constitution, effected by the direct action of Congress in its ordinary capacity, 
the late desolating war would not have fallen upon us. The result of his dis- 
cussion is, an earnest recommendation of the English mode of fundamental 
legislation by mere parliamentary majorities, followed up by the formality of 
the executive sanction. 

This view of the subject I regard as a mistaken one. Although it has been 
stated in general terms to be one of the functions of the English Parliament to 
enact amendments to the Constitution of the realm, yet that remark is but for- 
mallj' and superficially true, the function of that body being rather to register 
than to enact them. The fact is, that every considerable change in the English 
Constitution from Magna Charta down to our day, has been achieved by conflict 
outside the walls of Parliament — often by the blood of the English people. 
Wlien victory has declared itself, the principle established by it has by Parliament 
been written down as a part of the fundamental code — the three estates of the 
realm as it were following in the train of the national armies, and gathering up 
and depositing among the treasures of the kingdom the fruits of their conflicts. 
Never, either in England or elsewhere, do the peaceful labors of the legislator 
produce changes that touch radically the passions or the interests of men. Force 



500 MODE ADOPTED IN PENNSYLVANIA AND VEEMONT. 

§ 544. It has already been observed that, generally, whichever 
mode of amending Constitutions is adopted, the intervention of 
the legislature is required. It either proposes to the people the 
calling of a Convention, and, if they vote in favor of it, pro- 
vides for its call ; or it recommends specific amendments to 
be passed upon by the people in some one of the modes re- 
ferred to. 

To this rule there are exceptions, however, in the cases of the 
Pennsylvania Constitution of 1776, and of the several Constitu- 
tions of Vermont. In these cases the legislatures were allowed 
no participation in the business of concocting amendments, but 
they were effected by Conventions, called by a body styled the 
Council of Censors, which alone had power to propose them — 
a device which experience has shown to be more ingenious 
than useful. Among the powers of the Council, which was to 
meet every seventh year, was that of calling a Convention, 
to meet within two years after their sitting, if there should 
appear to them an absolute necessity of amending any Article 
of the Constitution which might be defective, explaining such 
as might be thought not clearly expressed, and adding such as 
were necessary for the preservation of the rights of the people; 
but it was wisely further provided, that the Articles to be 
amended, together with the amendments proposed, and such 
Articles as were proposed to be added or abolished, should be 
promulgated, at least six months before the day appointed for 
the election of such Convention, for the previous consideration 

alone works out such changes. Accordingly, had the American Constitution 
contained the provision so lauded by Mr. Fisher, the terrible war through which 
we have just passed would not have been prevented. So soon as party tactics 
should have failed to guard our Constitution against amendments in the interest 
of freedom, by filling Congress and the high judicial tribunals with the devotees 
of slavery, the latter would, precisely as they have now done, have appealed to 
arms. To men bent upon accomplishing a purpose, a pretext alone is necessary. 
Had our Constitution distinctly permitted Congress to ordain amendments to the 
fundamental code, the range within which to seek a pretext for revolution would 
hardly have been lessened. It is only formal and unimportant amendments that 
can be thus carried through, by the peaceful action of the majority — amend- 
ments of such a stamp that they commend themselves as needful or as proper to 
all candid minds when first presented, and so appearing are readily acquiesced 
in, because of slight importance — not such as ai*e vital to powerful interests, 
against which they are aimed, or which, at least, they will most injuriously 
affect. 



MODE PROPOSED IN MASSACHUSETTS IN 1853. 501 

of the people, that they might have an opportunity of instructing 
their delegates on the subject. 

This plan, which seems excellent, was not found to work well 
in Pennsylvania ; two stormy sessions of the Council resulting 
in a hopeless disagreement, after which it never met again, and 
was abolished in 1790. 

§ 545. From Pennsylvania, in the mean time, in 1777, this 
peculiar provision had been borrowed by Vermont, by which it 
has been retained until this day. Although, at an early day, 
this Council did an essential service to the cause of constitu- 
tional government in Vermont, by the faithfulness Avith which 
it discharged certain censorial duties committed to it by the 
Constitution, and has been instrumental in initiating some very 
important constitutional changes, still, on the whole, it cannot 
be regarded as a success. Of late years, it has been found to 
be too inflexible, serving rather as a shield to protect, than as a 
sword to cut down, abuses, and will hence, probably, ere long, 
give place to some scheme by which the public will can be 
more certainly reflected. It is doubtful, moreover, whether the 
election, once in seven years, of a Council for the purpose, among 
others, of proposing changes in the Constitution, if deemed ab- 
solutely necessary, is not practically to hold out inducements to 
recommend changes whether really necessary or not. If no sub- 
stantial reform is demanded by the people, a desire to magnify 
their office is likely to lead the Council to propose amendments 
of a trivial and unimportant character, lest there should seem 
to be in them a want either of critical acumen, or of zeal for the 
public good. 

§ 546. With these exceptions, no Constitution has ever con- 
templated amendments except through the prior ministry of the 
legislature. In the Massachusetts Convention of 1853, Mr. 
Hallett, indeed, proposed a plan not subject to the objections 
existing to that of a Council of Censors, and which, nevertheless, 
avoided the necessity of legislative intervention in the matter of 
calling Conventions. His plan was to authorize the qualified 
electors, in the year 1873, and every twentieth year thereafter, 
at the general election then to be held, to vote on this question : 
" Shall there be a Convention to revise the Constitution, in con- 
formity to the provisions of the Act of 1852, Chapter 1W8, relat- 
ing to the calling a Convention of delegates of the people for 



602 NATURE OF THE ACT OF A LEGISLATURE 

the purpose of revising the Constitution ? " If it should appear, 
by the returns made, that a majority of the qualified voters 
throughout the State, who should assemble and vote thereon, 
were in favor of such revision, the same should be taken to be 
the will of the people of the Commonwealth, that a Convention 
should meet accordingly ; and thereupon delegates should be 
chosen, on the first Monday of March next succeeding, and such 
delegates should meet in Convention in the State House, on the 
first Wednesday of May succeeding, in the same manner, and 
with the same authority, as was provided in the second, third, 
and fourth sections of that Act.^ 

Though doubtless possessed of some objectionable features, 
especially in regard to Conventions at fixed periods, and to the 
character of the Act referred to, the principle of this provision 
seems in some respects to be salutary. It certainly would obvi- 
ate the difficulties experienced in many of the States in securing 
the consent of the legislature to the call of a Convention, to 
lessen, perhaps, their power and emoluments. One material 
question relating to it, however, it is now too early to answer 
definitively ; and that is, whether or not such a provision unduly 
facilitates the alteration of the Constitution. For want of some 
such clause, the State of Rhode Island was, in 1842, thrown 
into a revolution, in which, as is not unusual, the law was on 
one side, and substantial justice on the other. On the other 
hand, it is possible, that had the States lately in rebellion against 
the Union, contained the provision offered by Mr. Hallett, and 
left no power in the legislatures to meddle with Constitutional 
changes at all, the inauguration of their revolution would have 
been prevented. To the leaders of the revolt, the alternatives 
would have been distinctly presented, either to wait on the move- 
ments of the electors in the several States, or openly to violate 
the Constitution — neither of which would have favored the 
secession scheme. But, as we have seen, it is, perhaps, now too 
early to pronounce upon a question which can be determined 
only by long constitutional experience. 

§ 547. It is a matter of interest now to ascertain, first, the 
nature of the participation of a legislature in the work of amend- 
ing a Constitution — whether the act it performs is an act of 
legislation or a special ministerial act. finding its analogies in 
1 Deh. Mass. Conv. 1853, Vol. III. p. 118. 



WHEN IT PARTICIPATES IN AMENDING A CONSTITUTION. 503 

those of a Convention, which, as we have seen, are mere recom- 
mendations addressed to a body above and beyond it, which 
alone enacts them into laws ; and, secondly, when that body 
recommends amendments to a Constitution, the extent of its 
power in that particular. 

I. In relation to the first subject of inquiry, there will be found, 
I am confident, upon a careful survey of the whole field, two 
distinct cases : first, that in which legislatures intervene to call 
Conventions, or to require the people to vote upon the question 
of calling Conventions, or upon amendments which legislatures 
submit to them ; and, secondly, that in which legislatures merely, 
by resolution, declare the adoption of specific amendments to 
be expedient, as a preliminary step towards submitting them to 
a vote of the people. In the first case, their action is believed 
to be strictly legislative ; in the second, to be merely ministerial. 
These will be considered in their order. 

In every case in which a legislature intervenes in the business 
of fundamental legislation, it does so by some vote or resolu- 
tion ; and to determine whether or not, in so doing, it performs 
an act of legislation, the readiest mode is to examine the result 
of its deliberations in detail. If it have the characteristics of a 
law, if it appear to have been passed by the law-making power 
within the scope of its authority as such, and to furnish a rule 
of action binding upon individuals, it must be classed with acts 
of legislation, whatever fine-spun theories may teach to the con- 
trary. 

It has been seen that our Constitutions usually provide for the 
call of Conventions by the legislature, either at their own dis- 
cretion, or upon the expressed desire of the people voting on 
the question at some fixed time, or when requested so to do by 
the legislature. The essence of the provisions, however, is, that 
the legislature, when moved thereto by an evident expediency, or 
by the public voice constitutionally expressed, shall call a Con- 
vention. This course has been universally followed, and the 
call has commonly been made in very nearly the same terms. 
It generally provides for an election on a given day, to choose 
delegates for a Convention ; it prescribes the duty of the dele- 
gates, namely, to revise the Constitution, sometimes descending 
to particulars, as, to amend that part of it relating to the basis 
of representation, or to the appointment and tenure of judicial 



604 NATUEE OF THE ACT OF A LEGISLATTJEE 

offices ; to determine the construction of a particular clause, and 
the like ; it fixes the time and place of assembling ; imposes lim- 
itations and restrictions upon its powers ; ascertains the pay of 
its officers and members ; and prescribes the disposition to be 
made by the Convention of the fruit of its deliberations, as, 
that it shall be submitted to the people, for ratification or rejec- 
tion ; that a copy of it shall be lodged with the Secretary of the 
Commonwealth, or be recorded in his office. Connected with 
the duties presented, or the limitations imposed, penalties are 
not unfrequently denounced, as, for illegal voting at the poll for 
ratifying or rejecting the Constitution, or for making false returns 
of the votes.^ 

Now, is it reasonable to deny to acts of the legislature, bear- 
ing thus the style and semblance of laws, containing mandatory 
clauses directed to public officers or to individual citizens, ac- 
companied by penalties for such as should transgress or disobey 
them, the force of laws ? 

§ 548. Similar considerations apply, to some extent, to the 
action of a legislature in the initiation of specific amendments, 
or in the matter of submitting Constitutions to the people. The 
general course, in these cases, is for the legislature, after the ap- 
propriate preliminaries, to require the electors, on a day specified, 
to cast their votes for or against the propositions indicated by it, 
laying down for the direction of the public officers, as well as 
of the voters, the specific injunctions needed to secure an ade- 
quate and honest expression of the public will. Can a reason 
be conceived Why the intervention of a legislature in this busi- 
ness, prescribing rules of conduct, and denouncing, as it com- 
monly does, penalties for acts of disobedience, should not be 
considered an act of legislation as much as when it takes steps 
identical in character, but respecting interests that are temporary 
and trivial ? 

The soundness of this view may be tested by adverting to 
the consequences of denying to the Acts in question validity as 
laws, and conceiving of them as simple recommendations. What 
certainty could there be as to the result of an election, in which 
some of the voters should obey, and some should disobey the 

1 The Act of the New York Legislature, passed March 21, 1821, calling the 
Convention of that year, contained provisions on all these subjects, of the kinds 
indicated. 



WHEN IT PAETICIPATES IN AMENDING A CONSTITUTION. 505 

commands of the legislature, with reference, for example, to vot- 
ing without prescribed qualifications, or to taking an oath to 
discharge the duty of inspectors of the election faithfully, and 
to make due returns thereof to the specified officers ? Without 
the restraints of law, what are usually regarded as necessary 
safeguards of elections would rest merely in the discretion of 
the persons oflfering to vote ; that is, they would practically have 
no existence ; and, of course, the elections, considered as expres- 
sions of the public voice, would be a mere farce. As to those 
parts of the action of a legislature indicated, then, we are forced 
to concede that it is properly legislative. 

§ 549. 2. On the other hand, when the legislative action con- 
sists simply in affirming, by a resolution intended only as a step 
preparatory to further and other action either of that or of some 
other body, the expediency of amending the Constitution, or in 
merely proposing such amendments as it deems desirable, such 
action cannot properly be called legislative. A mere declaration 
of opinion or a recommendation, to which the people may or may 
not, at their discretion, assent, it would be an abuse of language 
to style a command, or a rule of civil conduct. A good example 
of such recommendatory action, is that exhibited by Congress 
in proposing amendments to the Federal Constitution. When 
that body has proposed the amendments deemed by it to be desir- 
able, its action is at an end. If the propositions it makes receive 
the ratification of the legislatures of three-fourths of the States, 
or of Conventions in three-fourths thereof, they become parts of 
the Constitution ; otherwise, they fall to the ground. 

Upon this point we are not without authority to which great 
respect is due. In the Massachusetts Convention of 1820, in a 
discussion of a report of a committee on the subject of future 
amendments by the specific mode, on the recommendation of 
two-thirds of each house, Mr. Webster moved to amend by re- 
quiring two-thirds of the House, and a majority of the Senate, 
and in support of his amendment said : — 

" The object of the mode proposed for making amendments 
.... was to prevent the people from being called upon to make 
trivial amendments, or any amendments, except when a real evil 
existed. A reason for requiring two-thirds of the House, and 
only a majority of the Senate, was, that the general sense of 
the people was better expressed by representatives from small 



506 EXTENT OP THE POWER OF A LEGISLATURE 

districts, than from large ones. This was not an exercise of leg- 
islative power — it was only referring to some branch the jpower 
of making propositions to the people.''^ ^ 

So, also, on the same subject, Mr. Lincoln said : — 

" The whole power in relation to amendments, might as well 
be left to the Senate as to require the consent of two-thirds. . . . 
One-third of the Senate might be chosen by a little more than 
one-fifth of the people, and might prevent the wishes of the 
other four-fifths. . . . There was no danger of a political excite- 
ment continuing two years, so as to have a bad influence on the 
frame of government. The pro])osing amendments was not a 
subject of legislation, and there ivas no need of a check.''^ ^ The 
aim of these gentlemen was to show that in requiring more than 
a majority of the legislature or of some branch of it, to propose 
amendments to the Constitution, no principle was violated, as 
would have been the case had it been an exercise of ordinary 
legislation, for which, by the common practice of all free gov- 
ernments, a majority is sufficient. Being not an exercise of 
legislation at all, there was no impropriety in requiring a vote 
of two-thirds or of any other majority. 

§ 550. In the Virginia Convention of 1829, one speaker, Mr. 
Thompson, went beyond the position taken by Messrs. Webster 
and Lincoln, above explained, and denied that Acts of the legis- 
lature to take the sense of the people, or to organize a Conven- 
tion, were Acts of ordinary legislation. He said : — 

" No one ever supposed that the Acts to take the sense of 
the people, and to organize a Convention, were Acts of ordinary 
legislation ; or, properly speaking. Acts of legislation at all, as 

little so as an election by that body of any officer The 

truth is, the action of the ordinary legislature on this subject . . . 
is not of the character of ordinary legislation. It is in the nature 
of a resolve or ordinance adopted by the agents of the people, 
not in their legislative character, for the purpose of collecting 
and ascertaining the public will, both as to the call and organ- 
ization of a Convention, and upon the ratification or rejection 
of the work of a Convention." ^ It being a matter of interest 
to know what snch Acts were, if not Acts of legislation, the 
speaker thus explained his views on that subject : — 

1 Deh. Mass. Conv. 1820, p. 407. 2 M. 405. 

3 Deb. Va. Conv. 1829, p. 887. 



TO RECOMMEND SPECIFIC AMENDMENTS. 507 

" The Acts spoken of were called for by their constituents, 
resulted from the necessity of the case, and were justified by 
that supreme and paramount law, the salus populi. In short, 
they supplied the only mode by which the original right of the 
people to meet in full and free Convention to reform, alter, or 
abolish their form of government, could be exercised without 
jeopardizing the peace, tranquillity, and harmony of the State." ^ 

Thus, to escape the conclusion that the Convention Act was 
a law, binding upon the members of the Convention, the speaker 
based the Act of the legislature upon usurpation, and that of 
the people in pursuance of it, upon the right of revolution. To 
this hard necessity was he reduced to sustain the main position 
taken in his argument, that the submitting of the Virginia Con- 
stitution to the people, in a manner different from that prescribed 
by the General Assembly, was not an illegal act, or one which 
the Convention had no power to do. 

§ 551. II. In relation to the extent of the power of a legis- 
lature to recommend specific amendments to a Constitution, in 
what I have denominated the specific mode, I shall content my- 
self with considering one or two cases which have actually arisen 
in our courts, and with a few observations upon them. 

The 14th Section of the Bill of Rights of the Arkansas Con- 
stitution of 1836, contained the following provision : " That no 
man shall be put to answer any criminal charge but by present- 
ment, indictment, or impeachment." By the 24th Section, it was 
declared as follows : " Every thing in this Article " (Article II., 
comprising the Bill of Rights) " is excepted out of the general 
powers of government, and shall forever remain inviolate." At its 
session in 1844, the General Assembly of Arkansas, in pursuance 
of authority given in the Constitution, proposed an amendment 
to the Constitution, which was finally adopted by the next suc- 
ceeding General Assembly, in 1846, to the following effect: the 
amendment declares that "the General Assembly shall have 
power to confer such jurisdiction as it may from time to time 
deem proper, on justices of the peace, in all matters of contract, 
covenants, and actions for the recovery of fines and forfeitures, 
when the amount claimed does not exceed one hundred dollars ; 
and in actions and proceedings for assault and battery, and other 
penal offences, less than felony, which may be punished by fine 
only." 

1 Deb. Va. Conv. 1829, p. 887. 



508 EXTENT OF THE POWER OF A LEGISLATURE 

For the purpose of carrying into effect the power thus con- 
ferred, the General Assembly, in December, 1846, passed an Act 
entitled "An Act to define the Jurisdiction and regulate the Pro- 
ceedings of Justices' Courts in cases of Breaches of the Peace," 
of which the 1st Section declared, that " hereafter no assault 
and battery or affray shall be indictable, but such offences shall 
be prosecuted and punished in a summary manner, by present- 
ment of a constable, or any other person, before justices of the 
peace, as hereinafter provided ; "" thus, contrary to the 14th Sec- 
tion of the Bill of Rights as it originally stood, putting persons 
arrested for assault and battery, or for an affray — both criminal 
charges — to answer without " presentment, indictment, or im- 
peachment." At the October Term, 1847, of the Circuit Court 
of Carroll County, the grand jurors returned an indictment 
against Jackson A. Cox, for an assault and battery. Defendant 
pleaded to the jurisdiction of the court, alleging that by the Act 
of December 16th, 1846, the court was divested of jurisdiction 
of the oflFence, and jurisdiction thereof given to justices of the 
peace. To this plea the Attorney for the State demurred, the 
court overruled the demurrer, and the State appealed. 

On the hearing in the Supreme Court, the point raised was, 
that the Bill of Rights had not been amended by the proceed- 
ings of the legislature, but was still in force, notwithstanding 
those proceedings, that body having no power to amend that 
part of the fundamental law, under the specific power given it 
to amend the Constitution, by Article IV. § 35, thereof; since by 
the terms of Section 24 of the Bill of Rights (Article II.) every 
thing contained in that Article was excepted out of the general 
powers of government. 

§ 552. This objection the Supreme Court overruled, and sus- 
tained the judgment of the court below declaring the amend- 
ment valid and the Act constitutional. By Oldham J., they 
say : — 

" To the general and ordinary powers of the government con- 
ferred by the Constitution, the prohibition extends, and no further, 
but does not limit the General Assembly, in the extraordinary 
and specific authority and power conferred upon it, to propose 
and adopt amendments to the Constitution. The Constitution, 
in prescribing the mode of amending that instrument, does not 
limit the power conferred to any particular portion of it, and 



TO RECOMMEND SPECIFIC AMENDMENTS. 509 

except other provisions by declaring them to be amendable. The 
General Assembly, in amending the Constitution, does not act 
in the exercise of its ordinary legislative authority, of its general 
powers ; but it possesses and acts in the character and capacity 
of a Convention, and is, quoad hoc, a Convention, expressing the 
supreme will of the sovereign people, and is unlimited in its 
power save by the Constitution of the United States. There- 
fore every change in the fundamental law, demanded by the 
public will for the public good, may be made subject to the lim- 
itation above named." ^ 

§ 553. Three years later, the composition of the Supreme 
Court having undergone a change, another case, similar in its 
essential circumstances, except that the Circuit Court had pro- 
nounced against the validity of the amendment, notwithstand- 
ing the above decision, came before that tribunal on appeal taken 
by the respondent.^ 

After full argument, the main point decided by the court in 
The State v. Cox, was overruled, the judges holding, that the 
provisions of the Bill of Rights constitute the essential princi- 
ples of free government — the great landmarks of freedom — 
that the power to repeal or change them is not given to the 
General Assembly when acting either in the exercise of ordi- 
nary legislative authority or in the exercise of the higher power 
of amending the Constitution, but is reserved to the people 
themselves, acting through a Convention, lawfully called. 

The principal argument by which this position was supported, 
rested upon a construction of Section 24, — the concluding sec- 
tion of the Bill of Rights, — a part of which has been given 
above, but which, entire, is as follows : — 

" This enumeration of rights shall not be construed to deny or 
disparage others retained by the people ; and to guard against 
any encroachment on the rights herein retained, or any transgres- 
sion of any of the higher powers herein delegated, we declare, 
that every thing in this Article is excepted out of the general 
powers of government, and shall forever remain inviolate ; and 
that all laws contrary thereto, or to the other provisions herein 
contained, shall be void." 

By the court it was maintained, that one of " the higher pow- 

1 The State v. Cox, 3 English's R. 436. 

2 Eason v. The State, 6 English's R. 481. 



510 EXTENT OP THE POWEE OF A LEGISLATURE. 

ers herein delegated," was the power of amendment ; since, they 
said, in those terms must be included all the powers delegated, 
whether they be denominated " general powers " or " specific 
powers ; " " inevitably, therefore," it was said, " if these powers 
of amendment be a portion of the ' higher powers delegated,' 
which no one will attempt to gainsay, they must necessarily be 
as much within the controlling influence of the provisions of the 
Bill of Rights, as any others of these delegated powers." ^ 

§ 554. Upon this decision of the court, I shall make but one 
or two observations. 

That the reasoning of the court in relation to Section 24 of 
the Bill of Rights and the power of amendment, is utterly fal- 
lacious, becomes evident when that section is fairly interpreted, 
according to its terms, and considered in connection with the 
other sections of the Bill of Rights. 

Read and interpreted as it should be, Section 24 is as fol- 
lows : — 

" This enumeration of rights shall not be construed to deny 
or disparage others retained by the people," — that is, the rule 
of law, " expressio unius est exclusio alterius^'' shall not obtain, 
as a rule of construction, in relation to this Bill of Rights, but 
the people shall hold and enjoy all such rights as belong to them, 
whether specified in this Bill of Rights or not ; — " and to guard 
against any encroachment on the rights herein retained,^'' that 
is, in this Bill of Rights specially reserved to the people ; " or 
any transgression of any of the higher powers herein delegated^'' 
that is, in this Bill of Rights delegated ; " we declare that every 
thing in this Article," that is, in this Bill of Rights, " is excepted 
out of the general powers of government, and shall forever 
remain inviolate," that is, the three departments of the govern- 
ment, created by the following Articles of this Constitution, leg- 
islative, executive, and judicial, and invested, severally, in gen- 
eral terms, with governmental powers, shall not, by reason of the 
generality of the grants of power to them, presume to encroach 
on the rights, or transgress any of the powers, in this Bill of 
Rights retained or delegated, but the same shall forever remain 
inviolate; "and" we further declare, "that ail laws contrary 
thereto, or to the other provisions herein contained, shall be void," 
that is, that all laws, passed by the General Assembly, by virtue 
1 Eason v. The State, 6 English's R. 481 (490). 



TO EECOMMEND SPECIFIC AMENDMENTS. 511 

of its general power of legislation, contrary either to the rights 
retained, the powers delegated, or the other provisions contained 
in this Bill of Rig-hts, shall be void. 

§ 555. That this is the true interpretation of the section in 
question is evident from a careful inspection of the Bill of 
Rights as a whole. The interpretation given requires us to find 
in the Bill of Rights three classes of provisions : 1, such as re- 
serve to the people rights ; 2, such as delegate powers ; and 3, 
other provisions^ differing from both the other two. 

Of the first class there are numerous examples, such as the 
right to bear arms, freely to assemble and to apply for redress of 
grievances, &c. Of powers delegated^ instances are found in 
Section 23, which provides, that " the military shall be kept 
in strict subordination to the civil power ; " and in Section 8, 
which permits the giving of the truth in evidence in prose- 
cutions for the publication of papers investigating the official 
conduct of officers or men in a public capacity; and empowers 
juries "to determine both the law and the facts" in all indict- 
ments for libels. These provisions clearly involve a grant of 
power to the General Assembly to make laws in harmony with 
them, and to carry them into effect, making it at the same time 
its duty to do so. Of other provisions, examples are found in 
those clauses of the Bill of Rights which are couched in nega- 
tive terms, and operate as restraints upon the various depart- 
ments of the government, in the exercise of their acknowledged 
powers, rather than as substantive grants, or positive* recogni- 
tions of rights or powers. Such are the provisions against ex 
post facto laws, the putting of persons twice in jeopardy of life 
or limb, for the same offence, and the like. 

Having thus its full operation by applying it to the Bill of 
Rights alone, it is, in my judgment, erroneous to extend the 
provision of the 24th Section, as do the Court in the case under 
consideration, to that part of the Constitution relating to the 
making of amendments by the General Assembly. 

Besides, it is noticeable, that it is " out of the general powers 
of government " that every thing enumerated in the Bill of 
Rights is excepted, not out of powers which are not powers of 
government at all, like that of amending the Constitution given 
to the General Assembly. A power of government is a power 
which expends itself in administering or operating the political 



512 SHOULD SPECIFIC AMENDMENTS 

machine established by the Constitution, not one which goes to 
the rebuilding of that machine itself; or, to use a metaphor 
already once employed by me, it is a power proper not for the 
millwright, but for the miller. 

I need hardly say, therefore, that I deem the first decision of 
the Supreme Court, in the case of The State v. Cox, the better 
law. It expresses with admirable brevity, force, and clearness, 
the true doctrine in regard to the power of our General Assem- 
blies under similar clauses of our Constitutions. 

§ 556. III. The question has been raised, w^hether or not 
propositions of specific amendments to a Constitution, made by 
a legislature, under the constitutional provisions referred to, 
ought to be submitted to the executive for approval. 

Judging of this question from a priori considerations, it 
seems that the answer should be, that whenever the proposi- 
tions are coupled with provisions which impart to the legislative 
Act, in whole or in part, the force of law, according to the prin- 
ciples above explained,^ they ought to receive the approval and 
the signature of the executive ; but that when they bear only the 
character of recommendations, they ought not to be submitted 
to the executive. The reason for this distinction is simple. By 
our Constitutions, all Acts of the legislature, before they can 
become operative as laws, must receive the sanction and signa- 
ture of the executive branch of the government. An Act which 
is not legislative in its nature, and when perfect and operative 
to the fall extent intended by its framers, is yet destitute of all 
vigor as a law, not coming within the terms of the constitu- 
tional provisions, would clearly not be subject to the same con- 
ditions. 
/^ 1. This question, so far as relates to amendments to the 
/ Federal Constitution, has been several times the subject of dis- 
1 cussion in Congress, and once of adjudication in the Supreme 
V Court of the United States. 
^-^ The clauses of the Constitution of the United States, bear- 
ing on the question, are as follows : — 

" Art. V. The Congress, whenever two-thirds of both houses 
shall deem it necessary, shall propose amendments to this Con- 
stitution, .... which shall be valid to all intents and purposes 
as part of this Constitution, when ratified by the legislatures of 
1 See ante, §§ 547-550. 



BE SUBMITTED TO THE EXECUTIVE? 513 

three-fourths of the several States, or by Conventions in three- 
fourths thereof, as the one or other mode of ratification may be 
proposed by Congress." 

Art I. Sec. 7. " Every order, resolution, or vote, to which the 
concurrence of the Senate and House of Representatives may 
be necessary (except on a question of adjournment), shall be 
presented to the President of the United States ; and, before 
the same shall take effect, shall be approved by him, or, being 
disapproved by him, shall be repassed by two-thirds of the Sen- 
ate and House of Representatives, according to the rules and 
limitations presented in the case of a bill." 

§ 557. It would naturally be supposed that a recommenda- 
tion of amendments by Congress, by two-thirds of both houses, 
if not a bill, might properly be designated as a resolution 
or vote ; and hence, that by the very terms of Art. I. Sec. 7, 
above quoted, such a recommendation ought to receive the 
approval of the Executive. 

On the other hand, a close examination of Article V. shows 
that it contemplates nothing but a mere expression of opinion 
that amendments to the Constitution are necessary. That body 
being a numerous one, and representing the people, it is deemed 
probable that, whenever two-thirds of both its branches pro- 
nounce particular organic changes to be expedient, such is the 
sense of the people at large. There is to be no submitting of 
propositions to a vote of the people, consequently no directions 
for conducting an election, or making returns of votes, — in 
short, no prescribing of a rule of action to officers or citizens, 
for the reason that all action upon the subject is to be taken by 
separate agencies fully organized under State laws. In this 
view of the Constitution, then, the necessity of executive ap- 
proval seems to be very doubtful ; and of this opinion are the 
authorities generally. ^^ 

Amendments to the Federal Constitution were proposed by 
Congress in 1789, in 1794, in 1803, and in 1866, and in neither 
case were they presented to the President for his approval.^ 
The same is substantially true of the amendments relative to ^ 
slavery proposed by the same body in 1865.^ ^ 

1 See Speech of Senator Trumbull of Illinois, in the Senate of the United 
States, in Daily Globe for Feb. 8, 1865. See also HoUingsworth v. Virginia, 3 
Dall. R. 378. 2 Ibid. 

33 



514 SHOULD SPECIFIC AMENDMENTS 

The question we are considering was passed upon by the 
Supreme Court of the United States, in the case of Hoilings- 
worth V. The State of Virginia,^ in relation to the eleventh 
amendment, proposed in 1794. The validity of that amend- 
ment was denied by one of the parties in that cause, on the 
ground that it had " not been proposed in the form prescribed by 
the Constitution," in that it appeared, upon an inspection of 
the original roll, that " the amendment was never submitted 
to the President for his approbation." In support of this posi- 
tion, the lansfuage of the first article of the Constitution, above 
given, was mainly relied upon ; and to the argument of the op- 
posing counsel, that as two-thirds of both houses were required 
to originate the proposition, it would be nugatory to return it 
with the President's negative, to be repassed by the same 
number, it was answered that that was no reason for not pre- 
senting it to the President, since the reasons assigned by the 
latter for his disapprobation might be so satisfactory as to re- 
duce the majority below^ the constitutional proportion. On the 
other side, beside the argument above specified, it was urged by 
Lee, Attorney- General, that the case of amendments was evi- 
dently " a substantive act, unconnected with the ordinary busi- 
ness of legislation, and not within the policy or terms of invest- 
ing the President with a qualified negative on the Acts and 
"Resolutions of Congress." 

On the day following the argument, a unanimous per curiam 
opinion was delivered, that the amendment had been constitu- 
tionally adopted. The only language used by the Court which 
appears in the report is that of Chase, Justice, who observed as 
follows : — " The negative of the President applies only to the 
ordinary cases of legislation : he has nothing to do with the 
proposition or adoption of amendments to the Constitution." 

§ 558. The opinion thus expressed by the Supreme Court co- 
incides with that entertained by the Senate, when the amend- 
ment of 1803, respecting the mode of electing President and 
Vice-President of the United States, was under consideration. 
From the journals of that body, it appears that the question 
was distinctly raised on a motion that the amendment should 
be submitted to the President for his approval. The following 
is the entry on that subject : — 

I 3 Dall. R. 378. 



BE SUBMITTED TO THE EXECUTIVE ? 515 

" On motion that the Con:imittee on Enrolled Bills be directed 
to present to the President of the United States, for his appro- 
bation, the resolution which has been passed by both Houses of 
Congress, proposing to the consideration of the State legisla- 
tures an amendment to the Constitution of the United States, 
respecting the mode of electing President and Vice-President 
thereof, it was passed in the negative — yeas 7, nays 23." 

§ 559. In 1865, the amendment proposed by Congress, rela- 
tive to slavery, having by inadvertence been presented to the 
President of the United States for his approval by a subordinate 
officer of the Senate, Senator Trumbull, of Illinois, chairman of 
the Judiciary Committee of that body, introduced the following 
resolution : — 

" Resolved, That the article of amendment proposed by Con- 
gress to be added to the Constitution of the United States, re- 
specting the extinction of slavery therein, having been inad- 
vertently presented to the President for his approval, it is hereby 
declared that such an approval was unnecessary to give effect 
to the action of Congress in proposing said amendments, incon- 
sistent with the former practice in reference to all amendments 
to the Constitution heretofore adopted, and being inadvertently 
done, should not constitute a precedent for the future ; and the 
Secretary is hereby instructed not to communicate the notice of 
the approval of said amendment by the President to the House 
of Representatives." 

Upon this resolution a discussion arose, in which were exhib- 
ited the reasons for and against presenting amendments in such 
cases to the President, with great fullness. 

In favor of such presentation, it was argued, that the express 
language of the Constitution required it, for it said, "every 
order, resolution, or vote to which the concurrence of the Sen- 
ate and House of Representatives may be necessary," which 
covered this case precisely. Propriety, moreover, sanctioned 
such a course ; for, if the President should dissent, and present 
his objections to the two houses, it did not follow that the vote 
of two-thirds could be again had to repass the resolution. And 
there seemed a necessity, it was said, that the resolution should 
be presented to the President, since only through him, by the 
Secretary of State, could it readily be transmitted to the legisla- 
tures of the several States. Without special provision of law, 



516 SHOULD SPECIFIC AMENDMENTS 

unless it passed through the hands of the President, it would lie 
a dead letter. As to the decision of the Supreme Court, while 
it could not be denied that Justice Chase had said that the pro- 
visions of the Constitution applied only to ordinary acts of 
legislation, and that the Court concurred with him, yet not a 
single reason was given for that proposition, nor was the argu- 
ment made by counsel against the validity of the amendment 
answered either by the opposing counsel or by the Court. Be- 
sides, it was noticeable, that in the vote which "was taken on the 
question in 1803, among the names of those who voted for pre- 
senting the resolution to the President were those of Mr. John 
Quincy Adams and Mr. Pickering, and when such gentlemen 
affirmed a step to be necessary, some argument might fairly be 
required to show that it was not necessary. Finally, it was 
denied that the precedents were all opposed to the presentation 
to the President. The resolution passed in 1861 for an amend- 
ment to the Constitution interdicting attempts by Congress to 
interfere with slavery in the States, was submitted to the Presi- 
dent, and approved by him, without objection, as in case of an 
ordinary law.^ 

§ 560. On the other hand, by Senators Trumbull and Reverdy 
Johnson, both profound lawyers and jurists, it was strenuously 
contended that it was unnecessary and improper to present the 
resolution to the President. Beside referring to the precedents 
explained above, it was urged that the object of the constitu- 
tional provision on the subject of amendments was simply to 
initiate a mode by which the people should decide whether there 
should be an amendment of the Constitution or not. The 
action of Congress to that end did not, it was said, operate as a 
law. The whole effect of it was to submit the question to the 
people for their determination. Precisely the same effect was 
given to amendments proposed by the legislatures of the States. 
It would not be contended that the President had any control 
over a Convention called by two-thirds of the State legislatures. 
The proposition was, that no proposal by Congress of an amend- 
ment to the Constitution, although having received the support 
of two-thirds of both houses, was to be submitted to the States, 
unless the President should approve it. Suppose the other 
mode of proposing amendments, by two-thirds of the State 

1 Daily Globe for Feb. 8, 1865, Speech of Senator Howe of Wisconsin. 



BE SUBMITTED TO THE EXECUTIVE ? 517 

legislatures, should be adopted, would the President have any- 
thing to do with that ? All would admit that he would not. 
Would Congress have anything to do with that? All would 
admit that their duty would be an imperative one — simply to 
call a Convention. So that the whole object of the clause 
seemed to be to provide a mode by which the people might be 
furnished an opportunity of deciding whether the Constitution 
should be amended or not. 

Moreover, what made it still more obvious, it was said, that 
the Convention which framed the Federal Constitution did not 
intend that the President should decide upon a resolution of 
that description, was, that the resolution was not to be passed 
unless it was concurred in by two-thirds of each house. The 
constitutional provision which gives to the President the author- 
ity to veto any bill submitted to him says, that if he disapproves 
such bill or resolution, he is to send it back to the house in 
which it originated, and if passed by that house and the other 
by two-thirds, it is to become a law notwithstanding the veto. 
It was true, it did not follow that it would get the same vote 
after Congress had heard the President's objections ; but, look- 
ing at the two provisions — that which gives to the President 
the right to approve or disapprove, and that which looks to the 
duty of Congress consequent upon his disapproval — it was 
evident, it was said, that what was intended to be submitted to 
the President was a question which was to be passed upon by 
more votes than were necessary before it was submitted.^ ^ 

After these arguments, Mr. Trumbull's resolution was agreed \ 
to without a division. /^ 

§ 561. 2. The question has thus far been considered with 
reference only to amendments to the Constitution of the United 
States. Of cases where amendments have been made to State 
Constitutions, I have, after considerable research, been enabled 
to collect only the following precedents: — 

In the Constitutions severally in force in Connecticut, Massa- 
chusetts, and New York, specific amendments may be proposed 
by the legislature by resolutions, which are then referred to the 
legislature next to be chosen. If adopted by the requisite ma- 
jority, by such succeeding legislature, it is made the duty of the 
latter to submit the amendments to a vote of the people. The 

1 Daily Globe for Feb. 8, 1865, Speeches of Senators Trumbull and Johnson. 



518 SHOULD SPECIFIC AMENDMENTS 

practice in those States has been not to present the resolutions 
containing the proposed amendments to the Governor for ap- 
proval, but to present to that officer the subsequent Act by which 
they are submitted to the people. In New York, the proposi- 
tions of amendment are sometimes incorporated in a bill, pro- 
viding conditionally in one or more clauses for submission to the 
people, and in those cases the bill is submitted to the Governor 
for his approval. The existing Constitutions of Michigan and 
Minnesota provide that amendments may be proposed by a 
prescribed majority of the legislature, after which they are re- 
quired to be submitted by that body to the people. In the 
former State, the practice has been to effect this by a joint reso- 
lution, and in the latter, by a bill ; in both cases, however, com- 
bining the propositions and the clauses submitting them to the 
people in a single Act. In both cases, this Act is presented to 
the Governor for his sanction. In the Constitutions of Georgia 
and Rhode Island, amendments are permitted to be made by 
the action of two successive legislatures, without submission to 
the people ; and in neither case are the resolutions proposing 
the amendments presented to the Governor.^ In the Constitu- 
tion of Missouri authorizing amendments to be made in the 
same manner, the resolutions of the first legislature are pre- 
sented to the Governor, and those of the second, not. In the 
Constitution of Maine, finally, amendments may be proposed 
by the legislature, which are then to be submitted to the people, 
the Constitution itself containing particular directions as to the 
time and mode of holdhig the election, and no action on the 

1 The pi'actice is the same in Alabama, though there the Constitution is 
submitted to the people between the two successive legislatures. See Collier v. 
Frierson etal., 24 Ala. R. 100. 

The facts in the case of Collier v. Frierson are as follows : The General As- 
sembly of Alabama having, at its session in 1844-5, proposed several amend- 
ments to the State Constitution, and submitted them to a vote of the people, 
and the people having voted in favor of them, joint resolutions were adopted 
at the next succeeding session of the General Assembly reciting these facts, and 
declaring that the people had accepted " the said amendments, which are in the 
words and figures following,". — setting them all out except one, which was en- 
tirely omitted, — and the usual clause was then added, enacting that " the afore- 
said amendments to the Constitution, proposed as aforesaid, and accepted by the 
people as aforesaid, be ratified ; " held, " that the amendment which was entirely 
omitted from the ratifying resolutions was not constitutionally ratified, and 
therefore failed." 



BE SUBMITTED TO THE EXECUTIVE? 619 

part of the legislature being requisite, except by resolution to 
notify the towns to vote on the proposed amendments as pre- 
scribed in the Constitution. It is the practice to present the 
resolutions embodying the amendments to the Governor. 

In all these cases, the Constitutions give to the Governor a 
qualified negative, substantially like that of the President of 
the United States, except that of Rhode Island, which provides 
no negative whatever. One Constitution, that of Connecticut, 
gives to a majority of the legislature the power of passing over 
the Governor's head any measure returned with his objections. ^ 

It thus appears that the practice of the legislatures of the 
several States is generally conformable to the theoretical princi- 
ples proper to govern in such cases, as developed in previous 
sections of this chapter. 

§ 562. While the foregoing are the only precedents bearing 
on the question under consideration which I have been able to 
find, indications of opinion respecting it may be drawn from 
the provisions of two Constitutions — that of Delaware of 1792, 
and that of Louisiana of 1845. By the former, it was provided 
that amendments might be proposed by two-thirds of each 
house of the legislature, with the approbation of the Governor. 
They were then to be published, and if adopted by three-fourths 
of each branch of the succeeding legislature, they should be v^lid 
as parts of the Constitution. The provision of the Louisiana 
Constitution was the same, except that the successive legisla- 
tures were to adopt the amendments, the first by a vote of three- 
fifths, and the second by a majority only of the persons elected 
to each house, and they were then to be submitted to the people. 
In these cases, it is perhaps fair to infer that the action of the 
second legislature did not require the approbation of the Gov- 
ernor, else the clause requiring it for that of the first would 
have been so worded as to apply to both. Especially may this 
be inferred in relation to the Louisiana case, since the Constitu- 
tion of that State referred to, while in one clause permitting the 
second legislature to adopt resolutions of amendment by a ma- 
jority vote merely, in another required to overcome the nega- 
tive of the Governor a vote of two-thirds, which, supposing a 
negative in such cases possible, would be inconsistent with the 
former provision. 

1 For the facts stated in this section I am indebted to the Secretaries of State 
of the several States mentioned therein. 



520 WHEN A LEGISLATURE HAS ONCE REJECTED AN AMENDMENT 

§ 563. IV. There arose in 1865, on the side of the State 
legislatures, a question whether, when an amendment had been 
constitutionally proposed to them by Congress, and one of those 
bodies had passed upon it in the negative, it was competent for 
a subsequent legislature to reconsider and reverse that action. 
The question arose in Kentucky, the legislature of that State 
having rejected the amendment abolishing slavery throughout 
the United States. From the nature of the case there was no 
decision having the force of" a precedent ; but the legislature 
laying before the Governor its resolution of rejection, that officer 
returned to it a communication in which, after expressing his 
opinion that its action was complete without his approval, he 
asserted, in very forcible terms, his conviction that its act reject- 
ing the resolution only remitted the question to the people and 
the succeeding legislature, and no more precluded future ratifi- 
cation than the refusal to adopt any other measure would pre- 
clude the action of its successors. 

After citing the terms of the Federal Constitution, which 
declared amendments proposed by Congress to be valid to all 
intents and purposes as parts of that instrument, " when ratified 
by the legislatures of three-fourths of the several States," &c., he 
continued : — 

" When ratified by the legislatures of the several States, the 
question will be finally withdrawn, and not before. Until rati- 
fied, it will remain an open question for the ratification of the 
legislatures of the several States. When ratified by the legisla- 
ture of a State, it will be final as to such State ; and, when 
ratified by the legislatures of three fourths of the several States, 
will be final as to all. Nothing but ratification forecloses the 
right of action. When ratified, all power is expended. Until 
ratified, the right to ratify remains." ^ 
y/ Although the subject is not free from difficulties, it is prob- 
able that the foregoing will be accepted as the true construction 
of the fifth article of the Constitution. It could hardly have 
been unintentional, that the contingency of a rejection of the 
proposed amendment by one or more States was left unprovided 
for ; and it would seem a stretch of power to interpolate into 
that article a provision, that if rejected by one legislature or by 
three-fourths or even all of the legislatures, such action should be 

i Message of Governor Bramlette of March 1, 1865, to the Kentucky Legis- 
lature. 



PROPOSED BY CONGRESS, CAN IT RECONSIDER? 521 

taken to be definitive. On the contrary, it is reasonable to sup- 
pose the Convention intended to give to dissenting legislatures 
an opportunity to recede from an application of their negative 
which circumstances might show to be hasty and disastrous. 

§ 564. V. Before concluding the discussion of the doctrine 
of amendments to Constitutions, I propose further to consider 
a question, already several times alluded to in preceding pages, 
but particularly germane to the subject now in hand, namely, 
whether, when a Constitution contains a provision for effecting 
its own amendment, in either of the modes above mentioned, 
another and a different mode can be adopted, or whether the 
constitutional provision must alone be pursued for that pur- 
pose ? 

There may be two cases, according to the terms in which the 
constitutional provisions are couched. 

1. The Constitution may contain clauses, in negative terms, 
forbidding amendments, except when effected in a prescribed 
mode. Instances of this kind have been given in this chapter,^ 
of which that contained in the Constitution of West Virginia 
is the most striking. That Constitution, Art. XII. provides that 
no Convention is to be called to amend the same, " unless in 
pursuance of a law to take the sense of the people on the ques- 
tion of calling a Convention, nor unless a majority of the votes 
of the people should be in favor of a Convention." It also pro- 
vides that no members of a Convention are to be elected " until 
one month after the result of the poll should be ascertained and 
published ; " and that all Acts and Ordinances of any such 
Convention are to be submitted to the voters of the State for 
ratification or rejection, and " are to have no validity whatever 
until they are ratified." 

The question as to the force of such provisions may be deter- 
mined by considering the case of a Convention called by the 
legislature of West Virginia, without submitting the question 
of calling it to the voters, as required by the Constitution. In 
my judgment, it would be impossible to attribute to such a 
body any validity or legitimacy whatever. The Act by which 
it should be assembled would have been passed in dii'ect and 
palpable violation of the paramount law of the State, and 
would, therefore, bind neither the magistrate nor the citizen ; it 

1 Ante, § 537. 



522 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT, 

would be an act of revolution. This is too plain for argument; 
and, in my view, all cases depending on provisions of a similar 
character are to be governed by the same considerations. 

§ 565. That the estimate formed in the last section of the 
force of the negative provisions in question is a correct one, 
may be inferred from the acts and expressed opinions of the 
members of the Federal Convention, in relation to the Articles 
of Confederation, in which a similar provision relating to 
amendments was contained. By the 13th of those Articles, it 
was provided that no alteration should at any time be made 
in any of those Articles, " unless such alteration (should) be 
agreed to in a Congress of the United States, and be afterwards 
confirmed by the legislature of every State." It is well known 
that the Federal Constitution of 1787 was, in direct violation of 
that Article, confirmed, not by the legislature of each State, but 
by Conventions called in the several States. It was provided, 
moreover, in that Constitution, in palpable contradiction to the 
same Article, that that instrument should go into operation as 
to the ratifying States, when they should comprise, not the 
whole thirteen States constituting the Confederation, but nine 
States, at least. In fact, the new Constitution went into opera- 
tion on the 4th of March, 1789, when only eleven States had 
ratified it, North Carolina withholding her assent until the 21st 
of November following, and Rhode Island, until the 29th of 
May, 1790. But, the point to be noted is, that while the Fed- 
eral Convention acted, in the particular mentioned, in evident 
violation of the existing Constitution, it frankly admitted that 
fact, and excused its illegal and revolutionary proceedings upon 
the ground of absolute necessity. Our fathers were convinced 
of two things : first, that the salvation of the United States 
depended on the substitution of a firm national government for 
the loose Confederation then existing ; and, secondly, that to 
attempt to effect that change by the unanimous action of the 
State legislatures, as required by the 13th Article above quoted, 
would be to court failure, which would be nearly certain ruin. 
Hence the Convention, and hence its irregular provision for 
securing the adoption of the system it recommended.^ In this 

1 For the arguments relating to this subject in the Convention, by which the 
above statements are confirmed, see Elliott's Deh., Vol. V. pp. 352-356, 499-502, 
532-534. 



CAN ANOTHER MODE BE PURSUED? 523 

case, then, it is clear, that the act of disregarding the provisions 
of the 13th of the Articles of Confederation, was done confess- 
edly as an act of revolution, and not as an act within the legal 
competence of either the people or the Convention, under the 
Constitution then in force. It was truly a revolutionary act, 
happily, indeed, consummated without actual force, but involv- 
ing, as possible elements of the problem, both violence and blood- 
shed, should they be needed to make the revolution effectual. 

§ 566. There are certain cases, however, in which amend- 
ments have been effected in spite of such negative provisions, 
where attempts have been made to justify them on legal 
grounds. One of the most notable of these occurred in Dela- 
ware, in 1791-2. The first Constitution of Delaware, Article 
XXX., was as follows : — 

" No article of the Declaration of Rights and Fundamental 
Rules of this State, agreed to by this Convention," (that of 
1776,) " nor the first, second, fifth (except that part thereof that 
relates to the right of suffrage), twenty-sixth, and twenty-ninth 
articles of this Constitution, ought ever to be violated on any 
pretence whatever ; no other part of this Constitution shall he 
altered, changed, or diminished, without the consent of five parts 
in seven of the Assembly, and seven members of the Legislative 
Council^ 

As the Assembly consisted of only seven Representatives, 
and the Legislative Council of only nine members, this provis- 
ion required, to amend the Constitution in those parts which 
were made liable to amendment, five-sevenths of the one, and 
seven-ninths of the other, and the amendments were to be 
effected through the agency only of the legislative branch. 
Nevertheless, in 1791, the legislature passed an Act calling a 
Convention to revise and amend the Constitution. Accordingly, 
a Convention was elected, assembled in 1792, and framed the 
second Constitution of the State. 

Similar action was taken in 1850 in the State of Maryland. 
The Constitution of 1776, then in force, Sec. 59, provided that 
neither the Form of Government nor the Bill of Rights, nor any 
part thereof, should be altered, changed, or abolished, " unless a 
bill so to alter, change, or abolish the same should pass the Gen- 
eral Assembly, and be published at least three months before a 
new election," &c. 



524 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT, 

After violent contests between the friends and enemies of a 
reform of the State Constitution, an Act was finally passed in 
1850, in direct violation of this provision of that instrument, 
to call a Convention, the result of which was the election of 
such a body, and the adoption by it of the Constitution of 
1851. 

§ 567. Attempts, as I have said, have been made to defend 
this action of the States of Delaware and Maryland, on legal 
grounds. In the case of Delaware, the legality of the course 
pursued was distinctly asserted by Mr. Bayard, the Senator from 
that State, in a speech delivered in the Senate of the United 
States, in 1858, upon the Lecompton Constitution. As one 
reason why it would not be unjust to force that Constitution 
upon the people of Kansas against their will, he affirmed, that 
it would be in their power at any time to amend it, should it 
prove distasteful to them, notwithstanding positive provisions 
were contained in it forbidding amendments for a fixed period ; 
and, to establish that position, he referred to the action of his 
own State in 1792 ; the broad principle being asserted by him, 
that a majority of a people could not be restrained by constitu- 
tional inhibitions from changing their fundamental law when 
and as they pleased. The reasoning, in brief, by which this re- 
markable proposition was sustained, was comprised in these 
political axioms, resulting, as he claimed, "from the nature of 
man : " first, that all powers of government rest ultimately in 
the people at large ; secondly, that a majority of those who 
choose to act may organize a government; and, thirdly, that the 
right to change is included in the right to organize, and may 
in like manner be exercised at any time by a majority. Accord- 
ing to these principles, as the Senator affirmed, "the right of 
a majority to organize a government, under the law of the 
social compact, precludes any power in that majority to render 
the government they form unalterable, either for twenty or ten 
years, or for one year; because such a restriction is inconsistent 
with their own authority to form a government, and at war 
with the very axiom from which their own power to act is 
derived." ^ 

§ 568. So, in reference to the Maryland case, the Hon. Rev- 
erdy Johnson, United States Senator from that State, in a late 
1 Appendix to Vol. XXXVII. of the Congressional Globe, p. 188. 



CAN ANOTHER MODE BE PURSUED? 525 

letter respecting certain proceedings of the Maryland Conven- 
tion of 1864, said : — 

" No man denies that the American principle is well settled, 
that all governments originate with the people, and may by like 
authority be abolished or modified ; and that it is not within the 
power of the people, even for themselves, to surrender this right, 
much less to surrender it for those who are to succeed them. 
A provision, therefore, in the Constitution of any one of the 
United States, limiting the right of the people to abolish or 
modify it, would be simply void. And it was upon this ground 
alone that our Constitution of '76 was superseded by that of 

'51 The Constitution of 1851, therefore, rests on the 

inherent and inalienable American principle, that every people 
have a right to change their government." Subsequently, re- 
ferring to this principle, he says : " In its nature it is revolution- 
ary, but, notwithstanding that, it is a legal principle." ^ 

§ 569. Two points involved in these extracts deserve consid- 
eration. 

1. The right is claimed for the people to establish and to 
change their governments at pleasure — a right which cannot in 
general be denied. But who are the people ? In the true sense 
of the term, it means the political society considered as a unit, 
comprising in one organization the entire population of the 
State, of all ages, sexes, and conditions. Unquestionably, it is 
the right of the people in this sense to found its institutions, and 
to determine how they shall and how they shall not be abolished 
or amended. Having ordained the mode, however, in which 
changes therein may, and in which they shall not, be made, 
clearly no mode can be legal which contravenes the express let- 
ter of that fundamental provision. The society has, it is true, 
the physical power to override its own restrictions. But such 
an act would most certainly be illegal, because in violation of 
the letter of the law. Even were the whole people, by unani- 
mous action, to effect organic changes in modes forbidden by 
the existing organic law, it would be an act of revolution. 

2. That whatever the people are authorized to do, a majority 
of them may do, is generally true — by the term majority mean- 
ing the greater number. But it is important to determine the 

1 Letter to William D. Bowie and others, dated Oct. 7, 1864, published in 
the N. Y. Daily Tribune of June 5, 1865. 



626 IP THE CONSTITUTION PEOVIDES ONE MODE OP AMENDMENT, 

stage at which that proposition holds good. Nature knows 
nothing of any majority but that of force. Anterior, then, to 
any positive institutions, and this side an appeal to force, noth- 
ing less than the whole can rightfully bind the whole. It is 
only when a political society, with positive laws and compacts, 
has been established, that the whole can be bound by the action 
of a number less than the whole ; and the number to which 
shall be accorded the power to act for the whole, and the condi- 
tions under which it may so act, are matters of positive regula- 
tion, in which alone they find their warrant. From this it is 
apparent, that a mere majority in number of all the citizens of 
a State, or of the electors of a State, have no right whatever to 
act for the whole State, unless they can point to authority to 
that effect, express or implied, in the Constitution of the State ; 
and that if the action taken or proposed by such majority is 
palpably in the teeth of a constitutional provision, it is usurping 
and revolutionary. This, it will have been observed, was ad- 
mitted by Senator Johnson in the extract given above, although, 
it is true, that eminent lawyer gave utterance to the astounding 
paradox, that the action of the Maryland Convention was at 
once revolutionary and legal — a contradiction, which we have 
a right not to expect from a man occupying the high position 
of a Senator of the United States, not to say, of the foremost 
lawyer of the Union. 

§ 570. Whether or not the acts thus pronounced to be revolu- 
tionary were necessary or excusable, that is, on the whole expe- 
dient, even at the price of revolution, is a different question, 
which I do not decide. But that they were revolutionary is 
inferable from the preamble of the Act of the Delaware legisla- 
ture calling the Convention of 1792, setting forth the grounds 
upon which it took that step. It did not pretend to have a legal 
right to call a Convention, but affirmed that it was expedient so 
to do. Its language was as follows : " By the thirtieth article 
of the Constitution of this State, the power of revising the 
same, and of altering and amending certain parts thereof, is 
vested in the General Assembly ; and it appears to this house 
that the exercise of the power of altering and amending the 
Constitution by the legislature would not be productive of all 
the valuable purposes intended by a revision, nor be so satisfac- 
tory and agreeable to our constituents; and that it would be 



CAN ANOTHER MODE BE PURSUED ? 627 

more proper and expedient to recommend to the good people of 
the State to choose deputies for this special purpose to meet in 
Convention." 

There can be little doubt that this was true, and that the 
framers of the Constitution of 1776 acted indiscreetly in limit- 
ing amendments, in negative terms, to the General Asseipbly, 
and thereby, by irresistible inference, inhibiting the call of a 
Convention. But the real question was not, is it expedient that 
the Constitution be revised by a Convention, but can a Conven- 
tion be called for that purpose, in the face of the provision, that 
no part of the Constitution (with certain exceptions not to the 
purpose here) should be " altered, changed, or diminished, with- 
out the consent of five parts in seven of the Assembly, and 
seven members of the Legislative Council-? " This latter ques- 
tion the legislature itself answered implicitly in the negative, 
when it premised that the power of revising the Constitution 
and of altering and amending certain parts thereof was " vested 
in the General Assembly." 

§ 571. 2. The second case is that in which the terms of the 
constitutional provisions relating to amendments are permissive 
merely, without words restricting them to prescribed modes. 

In this case, upon authority certainly, and I think also upon 
principle, it is competent for the people, at the instance and 
through the ministry of the existing government, to amend their 
Constitution either in the mode presented or in such other mode 
as custom may have sanctioned, and as sound statesmanship 
may, under all the circumstances, approve. In my judgment, 
however, to render such action safe, or, consequently, legitimate, 
both these conditions should concur. 

Looking first at the precedents, it has been seen in a former 
chapter, that several instances have occurred in which Conven- 
tions have been called by the legislatures of States under the 
circumstances indicated. In those cases, constitutional provis- 
ions permitting amendments to be made in a particular manner 
or at a fixed time, through the agency of the legislative branch, 
had been found or fancied to be inadequate, because they either 
required to effect that object too large a majority of that branch 
or of the people, or authorized them to be made at a time too 
remote, so that the practical consequence was a closing of all 
legal avenues to change. Seeing no alternative to a resort to 



528 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT, 

force but the calling of a Convention, under the sanction of law, 
that course has by preference been pursued, not always without 
doubt or protest, though generally with the consent of the wise, 
to which time has commonly added the acquiescence of all. It 
is unnecessary to do more than merely to state that Conventions 
have been thus called in some of the most important States in 
the Union. Amongst these were the Conventions of New York, 
1846, Louisiana, 1852, Massachusetts, 1853, and Missouri, 1845 
and 1861. 

f § 572. In respect to the legitimacy of those Conventions, as 
/has been observed, it is now too late to raise a question. They 
have the sanction of long and general approval, and were there 
greater doubt than exists as to their regularity or validity, the 
necessities out of which they sprung, and the evils from which 
their labors have from time to time rescued our States, would 
vindicate their claim to be recognized as lawful assemblies. 
The seventy odd years of our constitutional history, indeed, 
have rendered it quite clear that it would have been wise in our 
earlier Constitutions to forestall doubt, by expressly providing, 
as is very commonly done in those framed in our day, that it 
! should be competent for our legislatures to call Conventions, not 
I only at times definitely fixed, but whenever it should seem to 
I them advisable so to do. In popular governments, it is the part 
\ of wisdom to recognize the fact, that what the people strongly 
\ desire they are likely in some manner to effect. If the attain- 
\ ment of their purposes by legal means be rendered too difficult, 
' they will probably resort to such as are illegal. Having a right, 
within the limits imposed by the moral law, and, in the States, 
by the Federal Constitution, to do whatever they please, restric- 
tions should have for their object mainly to make it certain that 
it is the people who speak, and that the language uttered by 
them is the expression of their matured opinions. 

§ 573. Viewed upon principle, the question I am considering 
turns mainly on the applicability of the legal maxim, expres- 
sio unius est exclusio alterius, to the construction of constitu- 
tional instruments. Were there no authority upon the point, it 
would be doubtful whether, in dealing with great questions of 
politics and government, the same maxim ought to prevail 
which regulates the construction of contracts between man and 
man. As a matter of speculation, it may be admitted that that 



CAN ANOTHER MODE BE PURSUED ? 529 

maxim expresses the weight of probability equally in cases of 
great and of small magnitude. But there is always a doubt ; 
and between the cases indicated there is this wide difference, 
that in ordinary contracts, it is possible to enforce the construc- 
tion which our courts shall pronounce the true one ; whilst in 
the case of constitutional provisions, regulating great organic 
movements, and presenting barriers to the attainment of what 
the people generally desire, to hold such a maxim applicable 
would be, in many cases, to make that revolutionary which per- 
haps was not so. "Where the intention of the framers of the 
Constitution is doubtful, the people, assuming power under the 
broader construction, should have the benefit of the doubt ; and 
that all the more, because, in opposition to them, our courts are 
comparatively powerless. If a largely preponderating majority 
favored a change, they would, as above said, be likely to effect 
it, right or wrong. It is infinitely better that, where no prin- 
ciple is violated, a Constitution should be so construed as to 
make their action legal rather than illegal. 

However this may be, it has been ruled by high judicial 
authority that the maxim, expressio unius est exclusio alterius, 
is applicable, as I have contended, rather to deeds and contracts 
between private individuals than to the provisions of a Consti- 
tution.i 

§ 574. On the other hand, it must be admitted, there is authority 
to the contrary in an opinion already referred to, delivered in 
1833, by the judges of the Supreme Court of Massachusetts. 

The Massachusetts Constitution of 1821 had made provision 
for making specific amendments to that instrument through the 
agency of the legislature, but not for calling a Convention. In 
1833, the question being before the legislature of submitting to 
the people the expediency of calling a Convention to alter or 
amend the Constitution in some particular parts, a doubt was 
raised whether it was competent for the legislature to take any 
steps towards calling a Convention, inasmuch as the Constitu- 
tion had provided another mode of effecting the same object. 
The following question was, therefore, submitted to the judges 
of the Supreme Court : ^ — « Can any specific and partic- 

1 See Barto v. HImrod, 4 Seld. R. 483. 

2 Chapter III. Article 11. of the Constitution, provided as follows : — " Each 
branch of the legislature, as well as the Governor and Council, shall have 

34 



530 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT, 

ular amendment or amendments to the Constitution be made in 
any other manner than that prescribed in the ninth Article of 
the amendments adopted in 1820 ? " 

To this question the judges replied, that, " considering that, 
previous to 1820, no mode was provided by the Constitution for 
its own amendment, that no other power for that purpose than 
in the mode alluded to, is anywhere given in the Constitution, 
by implication or otherwise, and that the mode thereby provided 
appears manifestly to have been carefully considered, and the 
power of altering the Constitution thereby conferred to have 
been cautiously restrained and guarded, we think a strong im- 
plication arises against the existence of any other power, under 
the Constitution, for the same purposes." ^ 

§ 575. Noting that the judges rest their opinion merely upon 
implication, thus substantially deciding that the maxim, " ex- 
pressio unius est exclusio alterius,"^ does apply to the construction 
of Constitutions as well as to deeds and other contracts between 
man and man, I shall merely add that, notwithstanding that 
opinion, a Convention was called in 1853, under the same Con- 
stitution, and that although its constitutionality was denied by 
some of the delegates, it was most ably vindicated by the fore- 
most legal minds in the body, including such names as Choate, 
Parker, and Marcus Morton, — the latter, one of the judges 
who rendered the opinion. On the other hand, the constitu- 
tional amendments framed by the Convention of 1853 were all 
rejected by the people, though only by a majority of about 4000 
in a vote of 140,000. Of the probable grounds for this adverse 
vote I am not advised ; and in the absence of evidence it is as 
fair to presume it arose from hostility to the measures as from 
doubt of the constitutional validity of the Convention. 

§ 576. "Whether the principles announced in the last five 
sections are applicable to the case of amendments to the Fed- 
eral Constitution, admits of considerable doubt. The fifth 
Article of that Constitution provides, that " the Congress, when- 

authority to require the opinions of tlie Justices of the Supreme Judicial Court 
upon important questions of law, and upon solemn occasions." 

1 For the whole opinion of the judges, see Appendix C, post. This opinion, 
it will be observed, was given at an early day in the history of the post-Rev- 
olutionary Conventions. Precedents have since then established a different 
rule. 



CAN ANOTHER MODE BE PURSUED ? 531 

ever two-thirds of both houses shall deem it necessary, shall 
propose amendments to this Constitution ; or, on the applica- 
tion of the legislatures of two-thirds of the several States, shall 
call a Convention for proposing amendments." These provis- 
ions, though in terms imperative, are not restrictive, and, there- 
fore, are to be classed with the variety above styled permis- 
sive, as contrasted with such as contain negative terms. Judg- 
ing by the general rule of construction shown to obtain in 
reference to Constitutions, then, it would seem clear, that the 
national legislature might call a Convention, on its own motion, 
by the action of a majority of both houses, followed by the 
approval of the President of the United States — the constitu- 
tional provision merely requiring that it shall do so " on the 
application of the legislatures of two-thirds of the several 
States," which evidently is not exclusive of other cases. 

Without entering at any great length into the discussion of 
this question, it may be said, in opposition to the view just 
indicated, that there is a difference between the Federal and 
State Constitutions in respect of the derivation of powers by 
implication. We have seen that Congress, the legislature of 
the Union, possesses only such powers as are expressly given to 
it, and as are necessary to the execution of its express powers ; 
while the legislatures of the States have general powers of 
legislation, save where restrictions have been imposed. Upon 
this difference is founded the doubt suggested in respect to the 
power of Congress to initiate amendments or to call a Conven- 
tion, under conditions varying from those set forth in the fifth 
Article of the Constitution. The provision, that in a contin- 
gency particularly specified. Congress shall call a Convention 
or propose amendments, cannot, perhaps, without a reversal of 
the rule of construction heretofore applied to the Federal Con- 
stitution, be held, by implication, to warrant the doing of either 
of those things under different circumstances or conditions. 



APPENDIX. 



A. 

COMPLETE LIST OF CONVENTIONS HELD IN THE UNITED STATES. 

N. B. — In the Remarks appended to the several Conventions in this list, the abbreviation 
" Sub.," indicates that the body to which it refers submitted, and "Not sub.," that it did 
not submit, its work to the people for adoption or rejection. 

The section-marks refer to the sections ante, where the Conventions indicated are de- 
scribed or referred to. The Conventions characterized as "Abortive" agreed upon no 
Constitution or Amendments, and therefore submitted none to the people. 







DATE OF ADJOURN- 




NAUES. 


DATE OF ASSEMBUNO. 


MENT. 


REMARKS. 


1. Continental Cong. (2d) 


May 10, 1775. 


March 1, 1781. 


This body not properly 
a Convention, but for 
convenience classed as 
such, like the Revolu- 
tionarv Conventions in 
general. Sub. §§ 159 
-162, 502, 503. 


2. New Hampshire, 


Dec. 21, 1775. 


Jan. 5, 1776. 


Not sub. § 131. 


3. 


June 10, 1778. 


June 5, 1779. 


Sub. § 132. 


4. " 


2d Tues. June, 1781. 


Oct. 31, 1783. 


Sub. § 132. 


5. " : 


1788. 


June 21, 1788. 


Called to ratify the Fed- 
eral Const. § 167. 


6. " 


September 7, 1791. 


Sept. 7. 1792. 


Sub. § 219. 


7. " 


November 6, 1850. 


AprU 17, J 851. 


Sub. §§ 217, 218. The 
amendments proposed 
at the first session in 
1850 were rejected by 
the people. Of those 
proposed at the second 
session in 1851, one 
only was adopted. 


8. South Carolina, 


1776. 


March 26, 1776. 


Not sub. §§ 133, 134. 


9. " , 


January 5, 1777. 


March 19, 1778. 


Not sub. §§ 135, 137, 
491. 


10. 


May 12, 1788. 


May 23, 1788. 


Called to ratify the Fed- 
eral Const. § 167. 


IL " 


1790. 


June 3, 1790. 


Not sub. § 219. 


12. 


December 17, 1860. 


Jan. 5, 1861. 


Not sub. Secession Con- 
vention. §§ 247-249. 


13. " 


September 13, 1865. 


Sept. 29, 1865. 


Not sub. Reconstruction 
Conv. §§ 250-259. 


14. Virginia, 

15. ^ 


May 6, 1776. 


June 29, 1776. 


Not sub. §138. 


June 2, 1788. 


June 27, 1788. 


Called to ratify the Fed- 








eral Const. § 167. 


16. 


October 5, 1829. 


Jan. 15, 1830. 


Sub. §§ 219, 508, 509. 


17. " 


October 14, 1850. 


Aug. 1, 1851. 


Sub. §§ 219, 508, 509. 


18. " 


February 13, 1861. 


1861. 


Sub. Secession Conven- 
tion. §§186,247-249. 



534 



APPENDIX. 
List of Conventions, (Continued.) 







DATE OF ADJOURN- 




NAMES. 


DATE OP ASSEMBLING. 


MENT. 


BE9IARES. 


19. Virginia, 


June 11, 1861. 


1861. 


Not sub. Reconstruction 
Conv. §§ 186, 187. 


20. " 


February 13, 1864. 


April 11, 1864. 


Not sub. Reconstruction 
Convention. §§ 219, 
250-259. 


21. New Jersey, 


June 10, 1776. 


Aug. 21, 1776. 


Not sub. §§ 139, 140. 


22. 


2d Tues. Dec. -1787. 


Dec. 18, 1787. 


Called to ratify the Fed- 
eral Const. § 167. 


23. " 


May 14, 1844. 


June 29, 1844. 


Sub. § 219. 


24. New York, - 


July 9, 1776. 


Mav 8, 1777. 


Not sub. §§ 150-152. 


25. 


June 17, i788. 


July 26, 1788. 


Called to ratify the Fed- 
eral Const. " § 167. 


26. " 


October 13, 1801. 


Oct. 27, 1801. 


Not sub. §§ 219, 492. 


27. 


August 28, 1821. 


Nov. 10, 1821. 


Sub. § 219. 


28. " 


June 1, 1846. 


Oct. 9, 1846. 


Sub. § 219. 


29. Pennsylvania, 


July 15, 1776. 


Sept. 28, 1776. 


Not sub. §§ 143, 144. 


30. " 


November 10, 1783. 


Sept. 25, 1784. 


Council of Censors. 
Abortive. § 220. 


31. " 


November 20, 1787. 


Dec. 12, 1787. 


Called to ratify the Fed 
eral Const. § 167. 


32. 


November 24, 1789. 


Sept. 2, 1790. 


Not sub. §§ 221, 222, 
225, 491. 


33. " 


May 2, 1837. 


Feb. 22. 1838. 


Sub. § 219. 


34. Maryland, 


August 14, 1776. 


Nov. 11, 1776. 


Not sub. § 145. 


35. '' 


April 21, 1788. 


April 28, 1788. 


Called to ratify the Fed. 
Const. § 167. 


36. " 


November 4, 1850. 


May 14, 1851. 


Sub. §§ 224, 225. 


37. " 


April 27, 1864. 


Sept. 6, 1864. 


Sub. §§ 217, 218, 509, 

note. 
Not sub. §§ 141, 142. 


38. Delaware, 


August 27, 1776. 


Sept. 20, 1776. 


39. 


1787. 


Dec. 7, 1787. 


Called to ratify the Fed- 
eral Const. § 167. 


40. 


1792. 


June 12, 1792. 


Not sub. §§ 223, 225. ■ 


41. 


November 8. 1831. 


Dec. 2, 1831. 


Not sub. §§ 217, 218. 


42. 


1st Tues. Dec. 1852. 


April 30, 1853. 


Sub. §§217,218. 


43. Georgia, 


1st Tues. Oct. 1776. 


Feb. 5, 1777. 


Not sub. § 147. 


44.. » 


October 26, 1787. 


Jan. 2, 1788. 


Called to ratify the Fed- 
eral Const. § 167. 


45. 


November 4, 1788. 


Nov. 24, 1788. 


Sub. §§ 148, 167. 


46. " 


January 4, 1789. 


1789. 


Called to ratify a State 
Constitution. Pro- 
posed amendments to 
it which were submit- 
ted to the next fol- 
lowing Convention. 
§§ 148, 149, 167, 219. 


47. " 


May 4, 1789. 


1789. 


Called to ratify a State 
Constitution. §§ 148, 
149, 167. 219. 


48. 


May 2, 1795. 


May 6, 1795. 


Not sub. §§ 217, 218. 


49. 


May 8, 1798. 


May 30, 1798. 


Not sub. ■§§ 217, 218. 


50. " 


1st Tues. May, 1838. 


1838. 


Sub. § 219. 


51. " . 


January 9, 1861. 


March 23, 1861. 


Not sub. Secession Con- 
vention. §§ 247-249. 


52. " 


October 25, 1865. 


Nov. 8, 1865. 


Not sub. Reconstruction 
Conv. §§ 250-259. 


53. North Carolina, '- 


November 12, 1776. 


Dec. 18, 1776. 


Not sub. § 146. 


54. " ' /- 


July 21, 1788. 


Aug. 4, 1788. 


Called to ratifv the Fed- 
eral Const. § 167. 


55. " /'A 


1789. 


Nov. 21, 1789. 


Called to ratify the Fed- 
eral Const. § 167. 


56. " / (A 


June 4, 1835. 


July 11, 18.35. 


Sub. § 219. 



APPENDIX. 
List of Conventions, (Continued.) 



535 







DATE OP ADJOURN- 


— - 


NAMES. 


DATE OP ASSEMBLING. 


MENT. 


REMARKS. 


57. North Carolina, 


May 20, 1861. 


1861. 


Not sub. Secession Con- 
vention. §§ 247-249. 


58. " ^/_ 


October 2, 1865. 


Oct. 19, 1865. 


Not sub. Reconstruction 


VU^ 


v.-<2rv- /^- ^^^^ 


'^/^^l,<'/& 


Convention. §§ 250- 
259. May 24, 1866, 


\tl\\. 






Convention reassem- 
bled, and proposed 
amendments to tlie 






Constitution, which 








were submitted to the 








people and rejected. 








See § 478, noU 1. 


59. Vermont, 


July 2, 1777. 


Dec. 2, 1777. 


Not sub. §§ 153, 154, 
171, 172. 


60. 


1st Wed. June, 1785. 


1st Thurs. Feb. 


Council of Censors. Sub. 






1786. 


§§ 155, 220. 


61. 


1st Thurs. June, 1786. 


1786. 


Calied to ratify a State 
Constitution. § 220. 


62. " 


January — , 1791. 


Jan. 10, 1791. 


Called to ratify the Fed 
eral Const. § 167. 


63. " 


1792. 


179-. 


Council of Censors. Sub. 
§220. 


64. " 


July 3, 1793. 




Called to ratify a State 
Constitution. § 220. 


65. " 


1799. 




Council of Censors. 
Abortive. § 220. 


66. " 


1806. 




Council of Censors. 
Abortive. § 220. 


67. " 


1813. 




Coimcil of Censors. 
Abortive. § 220. 


68. " 


June 7, 1820. 


March 26, 1821. 


Council of Censors. Sub. 
§ 220. 


69. " 


February 21, 1822. 


Feb. 23, 1822. 


Called to ratify a State 
Constitution. § 220. 


70. '" 


June 6, 1827. 


Dec. 1, 1827. 


Council of Censors. Sub. 
§220. 


71. " 


June 26, 1828. 




Called to ratify a State 
Constitution. § 220. 


72. " 


1834. 


June 15, 1835. 


Council of Censors. Sub. 
§220. 


73. " 


January 6, 1836. 


Jan. 14, 1836. 


Called to ratify a State 
Constitution. § 220. 


74. 


June 2, 1841. 


Feb. 15, 1842. 


Council of Censors. Sub. 
§220. 


75. 


January 4, 1843. 


Jan. 12, 1843. 


Called to ratify a State 
Constitution. § 220. 


76. " 


June 7, 1848. 


Feb. 28, 1849. 


Council of Censors. Sub. 
§ 220. 


77. 


January 2, 1850. 


Jan. 14, 1850. 


Called to ratify a State 
Constitution. § 220. 


78. " 


June 6, 1855. 


Feb. 26, 1856. 


Council of Censors. Sub. 
§ 220. 


79. " 


January 7, 1857. 


Jan. 12, 1857. 


Called to ratify a State 
Constitution. § 220. 


80. " 


June 4, 1862. 


Oct. 25, 1862. 


Council of Censors. 
Abortive. § 220. 


81. Massachusetts, 


January, 1778. 


Feb. 28, 1778. 


Sub. and rejected. § 156. 


82. 


September 1, 1779. 


June 16, 1780. 


Sub. §§ 157, 158. 


83. " 


January 9, 1788. 


Feb. 7, 1788. 


Called to ratify the Fed- 
eral Const. § 167. 


84. " 


November 15, 1820. 


Jan. 9, 1821. 


Sub. §219. 


85. 


November 4, 1853. 


Aug. 1, 1853. 


Sub. and rejected. §219. 



636 



APPENDIX. 
List op Conventions, (Continued.) 







BATE OF ADJOURN- 




NAMES. 


DATE OF ASSEMBMNQ. 


MENT. 


REMARKS. 


86. Federal Convention, 


May 14, 1787. 


Sept. 17, 1787. 


Sub. §§ 163-166,562, 503. 


87. Connecticut, 


January 4, 1788. 


Jan. 9, 1788. 


Called to ratiiV the Fed- 
eral Const. § 167. 


88. 


August 26, 1818. 


Sept. 16, 1818. 


Sub. § 219. 


89. Rhode Island, 


1790. 


May 29, 1790. 


Called to ratify the Fed- 
eral Const. * § 167. 


90. " 


1824. 




Sub. and rejected. § 219. 


91. " 


1834. 




Abortive. '§ 219. 


92. " 


October, 1841. 


1842. 


Sub. §§ 226-246. " Peo- 
ple's Convention." 


93. " 


November, 1841. 


Feb. 1842. 


Sub. and rejected. § 219. 
Convention called by 
the Charter govern- 
ment. 


94. « 


September, 1842. 


1842. 


Sub. §§ 219, 508, 509. 
Convention called by 
the Charter govern- 
ment. 


95. Kentucky, 


1st Mond. April, 1792. 


April 19, 1792. 


Sub. §§ 173, 174. 


96. " 


July 22, 1799. 


Aug. 17, 1799. 


Not sub. §§ 217, 218. 


97. " 


October 1, 1849. 


June 11, 1850. 


Sub. §218. 


98. Tennessee, 


January ll, 1796. 


Feb. 6, 1796. 


Sub. §§ 175-182. 


99. " -^ 


May 19, 1834. 


Aug. 30, 1834. 


Sub. §§ 217, 218, 509, 
note. 


100. " 


1861. 


1861. 


Sub. Secession Con- 
vention — the State 
legislature. §§ 247- 
249. 


10 J, " 


January 9, 1865. 


Jan. 13, 1865. 


Sub. Eeconstruction 
Convention. §§ 250- 
259. 


102. Ohio, 


November 1, 1802. 


Nov. 29, 1802. 


Sub. §§ 195, 217, 218. 


103. " 


May 6, 1850. 


March 10, 1851. 


Sub. §§ 217, 218. 


104. Louisiana, 


1st Mond. Nov. 1811. 


Jan. 22, 1812. 


Sub. §"195. 


105. " 


Aug. 5, 1844. 


May 16, 1845. 


Sub. ^§ 217, 218. 


106. « 


July 5, 1852. 


July 31, 1852. 


Sub. §§ 217, 218. 


107. " 


Januaiy 23, 1861. 


March 7, 1861. 


Not sub. Secession Con- 
vention. §§ 247-249. 


108. " 


April 6, 1864. 


July 25, 1864. 


Sub. Reconstruction 
Convention. §§ 250- 
259. Adjourned at the 
call of its president. 
2d session, called for 
July 30, 1866, dis- 
persed b}'' a mob. 
§§ 473-478. 


109. Indiana, 


2d Mond. June, 1816. 


June 29, 1816. 


Sub. § 195. 


110. 


October 7, 1850. 


Feb. 10, 1851. 


Sub. § 219. 


111. Mississippi, 


1st Mond. July, 1817. 


Aug. 15, 1817. 


Sub. §195. 


112. " 


September 10, 1832. 


Oct. 26, 1832. 


Not sub. §§ 217, 218. 


113. 


January 7, 1861. 


1861. 


Not sub. Secession Con- 
vention. §§ 247-249. 


114. " 


August 14, 1865. 


Aug. 26, 1865. 


Not sub. Reconstruction 
Convention. §§ 250- 
259. 


115. Illinois, 


1st Mond. Aug. 1818. 


Aug. 26, 1818. 


Sub. § 195. 


116. " 


June 7, 1847. 


Aug. 31. 1847. 


Sub. §§ 217, 218. 


117. " 


January 7, 1862. 


March 22, 1862. 


Sub. and rejected. §§ 217, 

218. 
Sub. § 195. 


118. Alabama, ^ 


July 5, 1819. 


Aug. 2, 1819. 


119. " 


January 7, 1861. 


March 20. 1861. 


Not sub. Secession Con- 








vention. §§ 247-249. 



APPENDIX. 
List of Conventions, (Continued.) 



637 



NASIES. 


DATE OP ASSEMBLING. 


DATE OF ADJOURN- 
MENT. 


REMARKS. 


120. Alabama, 


September 12, 1865. 


Sept. 30, 1865. 


Not sub. Eeconstruction 
Convention. SS 250- 
259. 


121. Maine, 


October 11, 1819. 


Oct. 29, 1819. 


Sub. §§ 183-185. 


122. Missouri, ^ 


June 12, 1820. 


Julv 19, 1820. 


Sub. § 195. 


123. 


November 17, 1845. 


.Jan. 14, 1846. 


Sub. § 219. 


124. " 


February 28, 1861. 


Julv 1, 1863. 


Not sub. § 219. 


125. 


January 6, 1865. 


April 10, 1805. 


Sub. § 219. 


126. Michigan, 


May 11, 1835. 


June 24, 1835. 


Sub. §§ 196-209. 


127. 


September 26, 1836. 


1836. 


Called to ratify a State 
Constitution. §§ 167, 
196-209. 


128. 


December 14, 1836. 


Dec. — , 1836. 


Called to ratify a State 
Constitution. §§ 167, 
196-209. 


129. " 


June 3, 1850. 


Aug. 15, 1850. 


Sub. §^ 217, 218. 


130. Arkansas, 


.January 4, 1836. 


Jan. 30, 1836. 


Sub. §§ 196, 197, 210. 


131. 


March 1, 1861. 


1861. 


Not sub. Secession Con- 
vention. §§ 247-249. 


132. " 


January 8, 1864. 


1864. 


Not sub. Reconstruction 
Convention. §§ 250- 
259. 


133. Florida, 


December 3, 1838. 


Jan. 11, 1839. 


Sub. §§ 196, 197, 210. 


134. " 


January 3, 1861. 


1861. 


Not sub. Secession Con- 
vention. §§ 247-249. 


135. " 


October 25, 1865. 


Nov. 13, 1865. 


Not sub. Reconstruction 
Convention. §§ 250- 
259. 


136. Iowa, 


October 7, 1844. 


Nov. 1, 1844. 


Sub. §§ 196, 197, 210. 


137. " 


1846. 


May 18, 1846. 


Called to ratify a State 
Constitution. §§ 167, 
196. 


138. " ' 


January 19, 1857. 


March 5, 1857. 


Sub. §§ 217, 218. 


139. Texas, 


1845. 


Aug. 27. 1845. 


Sub. § 195. 


140. " 


January 28, 1861. 


1861. 


Sub. Secession Conven- 
tion. §§ 247-249. 


141. " 


March, 1866. 


April 2, 1866. 


Reconstruction Conven- 
tion. §§ 250-259. 


142. Wisconsin, 


October 5, 1846. 


Dec. 16, 1846. 


Sub. and rejected. § 195, 

210. 
Sub. §§ 106, 210. 


143. 


December 15, 1847. 


Feb. 1, 1848. 


144. California, 


September 1, 1849. 


Oct. 13, 1849. 


Sub. §§ 196, 197, 210. 


145. Kansas, 


October 23, 1855. 


1855. 


Sub. §§ 196, 197, 211, 
212. Topeka Conven- 
tion. 


146. " 


September 5, 1857. 


Nov. 7, 1857. 


Sub. §§ 196, 213-216. 
Lecompton Convention. 


147. " 


July 5. 1859. 


July 29, 1859. 


Sub. §§ 195, 216. Wy- 
andotte Convention. 


148. Minnesota, 


July 13, 1857. 


Aug. 29, 1857. 


Sub. § 195. 


149. Oregon, 


August 17, 1857. 


Sept. 18, 1857. 


Sub. §§ 196, 210 


150. West Virginia, 


November 26, 1861. 


Feb. 19, 1863. 


Sub. ■§§ 167, 186-193, 
508, 509. 


151. Nevada, 


1863. 




Sub. and rejected. 
§§ 196, 197, 210. 


152. " 


1st Mond. July, 1864. 


1864. 


Sub. §§ 195, 197, 210. 



638 APPENDIX. 



B. 

At the extra session of the !N'ew York legislature, in November, 1820, a bill 
passed both houses, by the provisions of which a Convention was to be called, 
without referring the question to the people in the first instance. Delegates 
were to be chosen in February, 1821, and the Convention was to assemble in 
June following. This bill was sent to the Council of Revision, who returned it 
with the following objections, drawn up by Chancellor Kent, and concurred in 
by his Excellency Governor Clinton, and Chief Justice Spencer, and dissented 
from by Justices Yates and Woodworth, — Justices Van Ness and Piatt being 
absent. 

In Assembly, November 20, 1820. 

Objections of the Council to the bill calling a Convention. In Council of Re- 
vision, November 20, 1820, — 

Resolved, That it appears improper to the Council that the bill, entitled 
" An Act recommending a Convention of the people of this State," should be- 
come a law of this State. 

1. Because the bill recommends to the citizens of this State to choose by bal- 
lot, on the second Tuesday of February next, delegates to meet in Convention, 
for the purpose of making such alterations in the Constitution of this State as 
they may deem proper, without having first taken the sense of the people 
whether such a Convention, for such a general and unlimited revisal and altera- 
tion of the Constitution, be, In their judgment, necessary and expedient. 

There can be no doubt of the great and fundamental truth, that all free gov- 
ernments are founded on the authority of the people ; and that they have at all 
times an indefeasible right to alter or reform the same, as to their wisdom shall 
seem meet. The Constitution is the will of the people, expressed in their origi- 
nal character and intended for the permanent protection and happiness of them 
and their posterity ; and It Is perfectly consonant to the republican theory and 
to the declared sense and practice of this country that it cannot be altered or 
changed. In any degree, without the expression of the same original will. It is 
worthy, therefore, of great consideration, and may well be doubted, whether it 
belongs to the ordinary legislature, chosen only to make laws in pursuance of 
the provisions of the existing Constitution, to call a Convention In the first in- 
stance, to revise, alter, and perhaps remodel the whole fabric of the govern- 
ment, and before they have received a legitimate and full expression of the will 
of the people that such changes should be made. 

The difficulty of acceding to such a measure of reform, without the previous 
approbation of the constituents of the government, presses with peculiar force 
and with painful anxiety upon the Council of Revision, which was Instituted for 
the express purpose of guarding the Constitution against the passage of laws " in- 
consistent with its spirit." 

The Constitution of this State has been in operation upwards of forty years, 
and we have but one precedent on this subject, and that Is the case of the Con- 
vention of 1801. But it is to be observed that the Convention in that year 
was called for two specific objects only, and with no other power or authority 
whatsoever. One of these objects was merely to determine the true construe- 



APPENDIX. 539 

tion of one of its articles, and was not intended to alter or amend it • and the 
other was to reduce and limit the number of the Senators and Members of As- 
sembly. The last was the single alteration proposed ; and perhaps, even with 
respect to that point, it would have been more advisable that the previous sense 
of the people should have been taken. But there is no analogy between this 
single and cautious case and the measure recommended by the present bill, 
which is not confined to any specific object of alteration or revisal, but submits 
the whole constitutional charter with all its powers and provisions, however ven- 
erable they may have become by time and valuable by experience, to unlimited 
revisal. The Council have no evidence before them, nor does any legitimate 
apd authentic evidence exist, that the people of this State think it either wise 
or expedient that the entire Constitution should be revised and probed, and per- 
haps disturbed to its foundation. 

The Council, therefore, think it the most wise and safe course, and most ac- 
cordant with the performance of the great trust committed to the representative 
powers under the Constitution, that the question of a general revision of it 
should be submitted to the people in the first instance, to determine whether a 
Convention ought to be convened. 

The declared sense of the American people throughout the United States on 
this very point cannot but be received with great respect and reverence ; and 
it appears to be the almost universal will expressed in their constitutional char- 
ters that Conventions to alter the Constitution shall not be called at the instance 
of the legislature without the previous sanction of the people by whom those 
Constitutions were ordained. 

The Constitution of Massachusetts was established in 1 780, and contains the 
earliest provision on this subject. It provided that, in the year 1 795, the sense 
of the people should be taken on the necessity or expediency of revising the 
Constitution ; and that if two-thirds of the votes of the people were in favor of 
such revision and amendment, the legislature should provide for calling a Con- 
vention. The Convention now sitting in that State was called in consequence 
of a previous submission of such a question to the people. The Constitution of 
South Carolina was ordained in 1790; and in that it is declared that no Con- 
vention shall be called unless by the concurrence of two-thirds of both branches 
of the legislature. And the Constitution of Georgia, established in 1798, con- 
tains the same provision ; thus showing, that though the people be not previously 
consulted on the question, yet a more than ordinary caution and check upon 
such a measure was indispensable. The Constitution of Delaware, of 1792, de- 
clares very emphatically that no Convention shall be called but by the authority 
of the people, and that their sense shall be taken by a vote for or against a Con- 
vention ; and that if a majority of all the citizens shall have voted for a Con- 
vention, the legislature shall make provision for calling one. The same consti- 
tutional provision, that no Convention shall be called to alter or amend the 
Constitution, until the sense of the people by vote shall have been previously 
taken, whether, in their opinion, there was a necessity or expediency for a re- 
vision of the Constitution, has been successfully adopted, by the Constitution of 
New Hampshire, in 1792; by the Constitution of Tennessee, in 1796; by the 
Constitution of Kentucky, in 1799; by the Constitution of Louisiana, in 1812 ; 
by the Constitution of Indiana, in 1816 ; by the Constitution of Mississippi, in 
1817 ; and by the Constitution of Illinois, in 1818. 



540 APPENDIX. 

It would, as the Council apprehend, be impossible to produce higher and 
more respectable authority in favor of such a provision, and of its value and 
safety. 

2. Because the bill contemplates an amended Constitution, to be submitted to 
the people to be adopted or rejected, in toto, without prescribing any mode by 
which a discrimination may be made between such provisions as shall be deemed 
salutary and such as shall be disapproved by the judgments of the people. If 
the people are competent to pass upon the entire amendments, of which there 
can be no doubt, they are equally competent to adopt such of them as they ap- 
prove, and to reject such as they disapprove ; and this undoubted right of the 
people is the more unportant if the Convention is to be called in the first in- 
stance without a previous consultation of the pure and original source of all legi- 
timate authority. And it is worthy of consideration, and gives additional force 
to the expediency and fitness of a previous reference to the people, that time 
will be thereby given for more mature deliberation upon questions arising upon 
the Constitution, which are always momentous in their nature and calculated to 
affect not the present generation alone but their distant posterity, and when the 
legislature may probably have it in their power to avail themselves of a more 
just and accurate apportionment of the representation in the Convention among 
the several Counties in this State. 

Ordered, That the Secretary deliver the bill, together with a copy of the ob- 
jections aforesaid to the Honorable Assembly. 

J. V. N. YATES, 

Secretary. 



G. 

OPINION OF THE JUSTICES OP THE SUPREME JUDICIAL COURT, CONCERN- 
ING THE ALTERING OR REVISING OF THE CONSTITUTION IN ANY SPE- 
CIFIC PART THEREOF, 

l_Taken from 6 CusMng's Reports, 57 S. 2 

The justices of the Supreme Judicial Court have taken into consideration the 
two questions submitted to them (by the House' of Representatives), and upon 
which the honorable House has requested their opinion, of the following tenor, 
namely : — 

First. Whether, if the legislature should submit to the people to vote upon 
the expediency of having a Convention of delegates of the people, for the pur- 
pose of revising or altering the Constitution of the Commonwealth in any speci- 
fied parts of the same ; and a majority of the people voting thereon, should 
decide in favor thereof, could such Convention, holden in pursuance thereof, act 
upon and propose to the people amendments in other parts of the Constitution 
not so specified ? 

Second. Can any specific and particular amendment or amendments to the 
Constitution be made in any other manner than that prescribed in the ninth 
article of the amendments adopted in 1820 ? 



APPENDIX. 541 

And thereupon have the honor to submit the following opinion : — 

The court do not understand that it was the intention of the House of Repre- 
sentatives to request their opinion upon the natural right of the people, in cases 
of great emergency, or upon the obvious failure of their existing Constitution to 
accomplish the objects for which it was designed, to provide for the amendment 
or alteration of their fundamental laws ; nor what would be the effect of any 
change or alteration of their Constitution, made under such circumstances and 
sanctioned by the assent of the people. Such a view of the subject would in- 
volve the general question* of natural rights, and the inherent and fundamental 
principles upon which civil society is founded, rather than any question upon 
the nature, construction, or operation of the existing Constitution of the Com- 
monwealth, and the laws made under it. We presume, therefore, that the opin- 
ion requested applies to the existing Constitution and laws of the Common- 
wealth, and the rights and powers derived from and under them. Considering 
the questions in this light, we are of opinion, taking the second question first, \ 
that, under and pursuant to the existing Constitution, there is no authority given ! 
by any reasonable construction or necessary implication, by which any specific ( 
and particular amendment or amendments of the Constitution can be made, in | 
any other manner than that prescribed in the ninth article of the amendments 
adopted in 1820. Considering that, previous to 1820, no mode was provided by 
the Constitution for its own amendment, that no other power for that purpose, 
than in the mode alluded to, is anywhere given in the Constitution, by implica- 
tion or otherwise, and that the mode thereby provided appears manifestly to 
have been carefully considered, and the power of altering the Constitution 
thereby conferred to have been cautiously restrained and guarded, we think a 
strong implication arises against the existence of any other power, under the 
Constitution, for the same purposes. 

Upon the first question, considering that the Constitution has vested no au- 
thority in the legislature, in its ordinary action to provide by law for submitting 
to the people the expediency of calling a Convention of delegates for the pur- f 
pose of revising or altering the Constitution of the Commonwealth, it is difficult 
to give an opinion upon the question what would be the power of such a Conven- 
tion, if called. If, however, the people should, by the terms of their vote, de- \ 
cide to call a Convention of delegates to consider the expediency of altering the 
Constitution in some particular part thereof, we are of opinion that such dele- 
gates would derive their whole authority and commission from such vote ; and 
upon the general principles governing the delegation of power and authority, 
they would have no right, under such vote, to act upon and propose amend- 
ments in other parts of the Constitution not so specified. 

LEMUEL SHAW, 
SAMUEL PUTNAM, 
S. S. WILDE, 
MAKCUS MOKTON. 

January 24, 1833. 



542 APPENDIX. 



D. 

OPINION OP THE JUDGES OF THE SUPREME COURT OF NEW YORK, TOUCH- 
ING THE VALIDITY OP THE ACT OF ASSEMBLY PASSED APRIL 22, 1846, 
MODIFYING THE CONVENTION ACT OF MAY 13, 1845.1 

State op New York, ) 
In Assembly, April 10, 1846. ) 

Resolved, That the bill relating to the apportionment of delegates to the Con- 
vention be referred to the justices of the Supreme Court, with a respectful mes- 
sage from the Speaker of this House, requesting them to communicate forthwith 
to this House whether, in their opinion, the delegates to be chosen to the Con- 
vention under the law of the last session, be according to the apportionment of 
the present members of the legislature, and whether this legislature have any 
power to alter or amend that law. By order of the Assembly. 

A. G. CHATFIELD, Speaker pro tern. 

The justices of the Supreme Court have received the foregoing resolution, 
with the bill therein mentioned, and have considered the questions on which their 
opinion is asked by the Assembly. 

The first question touches the construction of the Convention Act of 1845 ; 
and the point to be considered is, whether the number of delegates to be chosen 
under the Act in the several counties, is to be regulated by the apportionment 
of members of Assembly which was made in 1836, or by the apportionment 
which has been made at the present session of the legislature. 

By the Constitution, the apportionment of members of Assembly which was 
made in the spring of 1836 took effect for the purpose of electing the members 
in the fall of that year ; but it did not take effect for any other purpose until 
the 1st day of January, 1837 ; and it was to remain unaltered for ten years. In 
other words, the representation of each county in the Assembly, from the com- 
mencement of the political and calendar year 1837 to the commencement of the 
political and calendar year 1847, was to remain the same. 

By the Convention Act, the people were to decide upon a " Convention " or 
" no Convention," at the fall election of 1845. If they decided for a Conven- 
tion, the delegates were to be chosen in April, 1846 ; they were to assemble in 
June following ; and the amendments to the Constitution on which the Conven- 
tion might agree were to be submitted to the people for adoption or rejection, at 
the fall election of the same year. Every thing in relation to the Convention 
was to be both begun and concluded, while the apportionment of members of 
Assembly made in 1836 remained in force and governed the representation from 
the several counties. 

The seventh section of the Convention Act provides that " the number of 
delegates to be chosen to such Convention shall be the same as the number of 
members of Assembly from the respective cities and counties in this State." We 

1 This opinion I do not find reported in any of the New York Law Reports, probably for 
the reason stated in the text, (§ 393, ante,) that there was no constitutional provision au- 
thorizing such a reference to the Supreme Court, and the opinion was therefore deemed 
extra-judicial. As given here, it is taken from Deb. 3fass. Conv. 1853, Vol. I. p. 138. 



APPENDIX. 543 

are of opinion that this means the number of members from the respective 
counties, under the apportionment which was in force when the Act of 1845 was 
passed, and which will be in force until after the delegates have been chosen 
and their labors have been terminated. Although a new apportionment of 
members of Assembly has already been made, it cannot take effect for any pur- 
pose until the fall of the present year. If an election for members of Assem- 
bly in any county for the present year were now to be ordered, and it should be 
held at the same time that the delegates to the Convention are to be chosen, the 
apportionment of 1836, and not that of the present session, would govern. The 
legislature would have no power to make a different rule. 

It would have been highly proper, as a just and equitable distribution of the 
delegates among the several counties, and the legislature of 1845 might have 
so provided, that the new census and apportionment which were then in pros- 
pect, should regulate the representation in the Convention. But we think that 
has not been done. 

It will be seen, on referring to the Assembly documents of 1845, No. 211, that 
the select committee to whom the Convention bill was referred gave a brief 
exposition of its provisions, in which they said that " each county is entitled to 
the same representation it now has in the Assembly." And so far as this ques- 
tion is concerned, the bill was passed in the same words in which it was reported 
to the House by the committee. It is difficult, therefore, to suppose that the 
legislature, in passing the bill, intended any other rule of representation than 
that which had been suggested to the committee. As their attention was plainly 
called to the subject, it can hardly be doubted that they would have changed 
the language of the seventh section if the bill was passed with any reference to 
the new census which was about to be taken, or to the apportionment which 
might be made under that census. 

This goes to confirm the construction which we think must be given to the 
Act, when looking at nothing but the Statute Book. 

The next question is, " Whether this legislature has any power to alter or 
amend that law." As a general rule, the legislature can alter or annul any law 
which it has power to pass. A proper solution of the question proposed by the 
Assembly involves, therefore, an inquiry concerning the source from which the 
Act of 1845 derives its obligation. 

The legislature is not supreme. It is only one of the instruments of that ab- 
solute sovereignty which resides in the whole body of the people. Like other 
departments of the government, it acts under a delegation of powers, and can- 
not rightfully go beyond the limits which have been assigned to it. This dele- 
gation of powers has been made by a fundamental law which no one depart- 
ment of the government nor all the departments united have authority to 
change. That can only be done by the people themselves. A power has been 
given to the legislature to propose amendments to the Constitution, which, 
when approved and ratified by the people, become a part of the fundamental 
law. But no power has been delegated to the legislature to call a Convention 
to revise the Constitution. That is a measure which must come from, and be 
the act of, the people themselves. Neither the calling of a Convention nor the 
Convention itself is a proceeding under the Constitution. It is above and beyond 
the Constitution. Instead of acting under the forms and within the limits pre- 



544 APPENDIX. 

scribed by that instrument, the very business of a Convention Is to change those 
forms and boundaries as the public interests may seem to require. A Convention 
is not a government measure, but a movement of the people, having for its 
object a change, either in whole or in part, of the existing form of government. 

As the people have not only omitted to confer any power on the legislature to 
call a Convention but have also prescribed another mode of amending the or- 
ganic law, we are unable to see that the Act of 1845 had any obligatory force 
at the time of its enactment. It could only operate by way of advice or recom- 
mendation, and not as a law. It amounted to nothing more than a proposition 
or suggestion to the people to decide whether they would or would not have a 
Convention. That question the people have settled in the affirmative, and the 
law derives its obligation from that act and not from the power of the legisla- 
ture to pass it. 

The people have not only decided in favor of a Convention, but they have 
determined that it shall be held in accordance with the provisions of the Act of 
1845. No other proposition was before them, and of course their votes could 
have had reference to nothing else. They have decided on the time and man- 
ner of electing delegates and how they shall be apportioned among the several 
counties. 

If the Act of the last session is not a law of the legislature but a law made 
by the people themselves, the conclusion is obvious that the legislature cannot 
annul it nor make any substantial change in its provisions. If the legislature 
can alter the rule of representation it can repeal the law altogether, and thus 
defeat a measure which has been willed by a higher power. 

A change in the fundamental law, when not made in the form which that law 
has prescribed, must always be a work of the utmost delicacy. Under any 
other form of government than our own, it could amount to nothing less than a 
revolution. The greatest care should, therefore, be taken that nothing be done 
which can give rise to doubts or difficulties in the choice of delegates or the har- 
monious organization and action of the Convention. A controversy about the 
number of delegates to which any county is entitled may lead to irregular and 
disorderly proceedings at the election, and an imperfect expression of the will 
of the electors in the choice of delegates. It may embarrass the inspectors of 
elections and the canvassers of votes. It may also tend to disorder in the 
Convention, where the question must finally be settled who are and who are not 
members of the body. In the strife of parties, if there should be parties in the 
Convention and they should be nearly balanced, the body may either be broken 
up or the moral force of its acts be greatly impaired. As a question of expedi- 
ency, therefore, as well as of power, we think it the safest course to leave the 
law as it now is. 

If, however, the Assembly should think otherwise, it is then proper that we 
should take some notice of the bill which has been referred for our considera- 
tion. 

The first section of the bill is in the following words : — 

" Sec. 1. The true intent and meaning of so much of the seventh section of 
an Act, entitled, ' An Act recommending a Convention of the people of this 
State,' passed May 13, 1845, as relates to the number of delegates to be chosen 
to the said Convention in and by the respective cities and counties of this State, 



APPENDIX. 545 

is, that the number of delegates to be chosen to the said Convention, in and by 
the said cities and counties respectively, shall be the same as the number of 
members of the Assembly which the said cities and counties will respectively 
be entitled to elect according to the census of the inhabitants of this State taken 
in the year 1845." 

We have already expressed the opinion that such is not " the true intent and 
meaning " of the law. It is proper to add that, as the section merely professes 
to declare what the law now is, without either proposing to alter it or command- 
ing any thing in particular to be done or omitted, it cannot change the leo-al 
effect of the existing statute. The legislature has no judicial power. Althouo-h 
its opinions are entitled to great consideration, they cannot have the force of a 
law. If, therefore, it is deemed expedient to legislate on the subject, it is sub- 
mitted that there should be a positive enactment instead of a mere declaration 
of opinion. 

The second section of the bill goes beyond a mere declaration, and provides 
that the number of delegates to be chosen to the Convention " is hereby de- 
clared to be and shall be as follows," [specifying the number to be elected in 
each county.] The words " shall be " give this section the force of a command , 
and, if the section should be enacted, it will have the effect of altering the Con- 
vention law, if the legislature has any power over the subject. 

The two remaining sections of the bill call for no remark. 

In this discussion we have assumed, without intending to express any opinion 
on the subject, that the Constitution can be amended in a different,way from 
that which has been prescribed by the people in the instrument itself. 

We cannot close this communication without expressing our regret that 
questions of so much delicacy and importance should be presented under cir- 
cumstances which have given us but a few hours for conferring together and re- 
ducing our opinion to writing. Neither of us had either examined or thought 
of the questions until after the reference was made ; and it was not until this 
day that we were able to meet and consult together on the subject. 

Respectfully submitted, 

GREENE C. BRONSON, 
SAMUEL BEARDSLEY, 

Albany, April 14, 1846. F. G. JEWETT. 



E. 

The official proceedings culminating in the reassembling of the Louisiana 
Convention of 1864 are shown by the following documents : — 

I. 

MINUTES OF THE CAUCUS OF MEMBERS OF THE LOUISIANA CONVENTION 
OP 1864, BY WHICH THE PRESIDENT OF THAT BODY WAS REMOVED, AND 
A PRESIDENT PRO TEM. APPOINTED, AS PUBLISHED BT ITS SECRETARY. 

New Orleans, June 26, 1866. 
In pursuance of the following invitation, a meeting of members of the Con- 
stitutional Convention of the State of Louisiana, was held at the State House. 
35 



646 APPENDIX. 

New Orleans, June 23, 1866. . 
Sir, — Several members of the Convention, as well as the Executive, request 
you to attend a meeting of the members of the Constitutional Convention of the 
State of Louisiana, at the Mechanics' Institute, New Orleans, on Tuesday, 26th 
inst., at 2 o'clock, p. m. JOHN E. NEELIS, Secretary. 

On motion of Mr. Cutler, Hon. K.. K. Howell was called to the chair. The 
roll being called, the following members responded to their names, viz. : Messrs. 
Jno. T. Barrett, Jos. G. Baum, Robt. B. Bell, Jos. V. BofiU, J. R. Bromley, Jno. 
Buckley, Jr., Terrence Cook, Benj. Campbell, F. M. Crozat, R. King Cutler, 
Jno. L. Davies, James Duane, W. R. Fish, G. H. Flagg, Edmond Flood, Louis 
Gastinel, C. H. L. Gruneberg, Edward Hart, P. Harnan, J. J. Healy, Jno. Hen- 
derson, Jr., Wm. H. Hire, R. K. Howell, Geo. Howes, H. Maas, Robert Morris, 
P. K. O'Conner, John Payne, O. H. Poynot, John Purcell, Alfred Shaw, Charles 
Smith, C. W. Stauffer, Jno. A. Spellicy, Robert W. TaUaferro, J. Randall 
Terry, W. H. Waters, and Ernest J. Week. 

On motion of Hon. R. K. Cutler, Mr. J. K. Belden, having had his creden- 
tials approved by the Committee on Credentials previous to the adjournment of 
the Convention in 1864, was admitted to a seat as a member of this body. 

On motion of Mr. Fish, Maj. J. H. Andem was appointed official reporter. 

On motion of Hon. Chas. Smith, Mr. Shelley was invited to a seat within the. 
bar. 

Mr. Cutler offered the following preamble and resolutions : — 

Whereas, The Constitutional Convention of the State of Louisiana, when it 
adjourned in 1864, adjourned subject to call, in case of any emergency prior to 
the admission of this State into the Federal Union ; 

Whereas, The Civil Rights Bill has become a law, and certain amendments to 
the Constitution of the United States have passed both Houses of Congress, and 
now await the ratification of loyal legislatures of the several States ; 

Whereas, In the opinion of all the powers of the General Government, of the 
Executive of the State of Louisiana, of all the members of said Convention, and 
of all the loyal citizens of the State of Louisiana, there is sufficient cause, and 
the emergency does exist for the reconvocation and action of said Constitutional 
Convention ; 

Whereas, His Excellency, the Governor of the State of Louisiana, and a 
large number of the members of said Constitutional Convention, have personally 
and collectively, and at divers times within the past two months, waited upon, 
conversed with, and demanded of the Hon. E. H. Durell, President of said 
Convention, to issue his proclamation to reconvoke said Convention, or resign 
his position and office of president of said body ; and 

Whereas, The said E. H. Durell, president as aforesaid, did continually refuse, 
and now peremptorily refuses, to either issue his proclamation to reconvoke said 
Convention, or to resign his office of president thereof; 

Be it therefore Resolved, That the said E. H. Durell is no longer entitled to 
the confidence of the members of the Constitutional Convention of Louisiana, 
or of the loyal people of the State of Louisiana, or of the General Govern- 
ment. 

Be it therefore Resolved, That the office of President of the Constitutional 



APPENDIX. 547 

Convention of tbe State of Louisiana, for the purposes of reconvoking and 
properly organizing said Convention be, and the same is hereby declared 
vacant. 

Be it further Resolved, That -this body do now proceed to elect a president 
pro tern, of the Constitutional Convention of Louisiana, for the purpose of recon- 
voking and permanently organizing for action said Convention. 

For the foregoing, Mr. Smith offered the following substitute : — 

Resolved, That a committee of five members — including the president of this 
meeting as chairman — be appointed to call upon Hon. E. H. Durell, President 
of the Constitutional Convention of Louisiana, and request him to issue his 
ofScial call for its reconvocation. 

On motion of Mr. Fish, the substitute was laid on the table. 

Mr. Smith then moved that a committee of seven members be appointed to 
wait on Judge Durell, and ascertain his views relative to calling the Convention 
together, and report within one hour. 

The motion was adopted, and the president appointed the following members 
to compose said committee, viz. : — 

Messrs. Smith, Poynot, Purcell, Stauffer, O'Conner, Harnan, and Barrett. 

On motion of Hon. R. K. Cutler, the president of this meeting was added to 
said committee. 

The Convention then took a recess of one hour, in order to allow the com- 
mittee time to report. 

On reassembling, Mr. Smith, on behalf of the committee appointed to wait 
on Judge Durell, verbally reported that the committee had discharged its duty, 
and that Judge Durell declined to issue a call reconvening the Convention, 
alleging as his reasons fears that he would not be sustained in doing so, and also 
his distrust of the Governor of Louisiana. On motion, the report was received, 
and the committee discharged. 

The yeas and nays were then demanded on the adoption of Mr. Cutler's pre- 
amble and resolutions. The roll being called, the following members voted 
yea : — 

Messrs. Barrett, Baum, Bell, Belden, Cook, Cutler, Duane, Davies, Fish, 
Flagg, Flood, Hart, Henderson, Howell, Howes, Healey, Maas, O'Conner, 
Payne, Poynot, Spellicy, Stauffer, Terry, and Waters — 24. 

The following members voted nay, viz. : — 

Messrs. Boflll, Hire, Morris, Shaw, and Smith — 5. 

Whereupon the president declared the preamble and resolutions adopted. 

In accordance with the foregoing resolutions, nominations were declared open 
for President pro tern, of the Convention. Hon. R. K. Howell was nominated 
by Mr. Shaw. No other nominations being made, Mr. Cutler moved that the 
Hon. R. K. Howell be unanimously declared the President pro tern, of the Con- 
vention, 

The secretary submitted the name of Mr. Howell, and he was unanimously 
elected. Mr. Cutler offered the following resolutions : — 

Resolved, That it is the earnest desire of the members of the Constitutional 
Convention and all loyal citizens of the State of Louisiana, that the Hon. R. K 
Howell, this day elected president pro tern, of this Convention, in conjunction 
with His Excellency the Governor of the State, do immediately issue their 



548 APPENDIX. 

respective proclamations reconvoking said Convention, and ordering elections 
to fill vacancies to said Convention. 

Resolved^ further, That it is the earnest desire of the members of the Consti- 
tutional Convention of the State of Louisiana now assembled, that the said Con- 
vention should assemble, and said elections be held, within the shortest delay- 
possible. 

The foregoing resolutions were unanimously adopted, and the Convention 
adjourned subject to the call of the president pro tern. 

JOHN E. NEELIS, Secretary. 



II. 
PROCLAMATION, 

BY R. K. HOWELL, PRESIDENT PRO TEM. OF THE CONVENTION FOR THE 
REVISION AND AMENDMENT OF THE CONSTITUTION OF LOUISIANA. 

Whereas, By the wise, just, and patriotic policy developed by the Congress 
now in session, it is essential that the organic law of the State of Louisiana 
should be revised and amended so as to form a civil government in this State in 
harmony with the General Government, establish impartial justice, insure do- 
mestic tranquillity, secure the blessings of liberty to all citizens alike, and restore 
the State to a proper and permanent position in the great Union of States, with 
ample guarantees against any future disturbance of that Union. 

And whereas, It is provided by resolution adopted on the 25th day of July, 
1864, by the Convention for the revision and amendment of the Constitution of 
Louisiana, that when said Convention adjourns it shall be at the call of the presi- 
ident, whose duty it shall be to recouvoke the Convention for any cause. 

And whereas, further, It is important that the proposed amendments to the 
Constitution of the United States should be acted upon in this State within the 
shortest delay practicable ; and that he shall also, in that case, call upon the 
proper officers of the State to cause elections to be held to fill any vacancies 
that may exist in the Convention, in parishes where the same may be practicable. 

And whereas, at a meeting held in New Orleans on the 26th June, 1866, the 
members of said Convention recognized the existence of the contingency pro- 
vided for in said resolutions, expressed their belief that the wishes and interests 
of the loyal people of this State demand the reassembling of the said Conven- 
tion, and requested and duly authorized the undersigned to act as president pro 
tern, for the purpose of reconvoking said Convention, and in conjunction with 
His Excellency the Governor of the State, to issue the requisite proclamation 
reconvoking said Convention, and ordering the necessary elections as soon as 
possible ; 

Now, therefore, I, Rufus K. Howell, president pro tern, of the Convention 
as aforesaid, by virtue of the power and authority thus conferred on me, and 
in pursuance of the aforesaid resolutions of adjournment, do issue this my 
proclamation reconvoking the said Convention, for the revision and amendment 
of the Constitution of Louisiana ; and I do hereby notify and request all the 



APPENDIX. 549 

delegates to said Convention to assemble in the hall of the House of Represent- 
atives, Mechanics' Institute Building, in the city of New Orleans, on the fifth 
Monday (thirtieth day) of July, 1866, at the hour of 12 o'clock, m. ; and I do 
further call upon His Excellency the Governor of this State to issue the neces- 
sary writs of election, to elect delegates to the said Convention in parishes not 
now represented therein. 

Done and signed at the city of New Orleans this seventh day of July, a. d. 
1866, and of the independence of the United States the ninety-first. 

Attest : R. K. HOWELL, 'President pro tem. 

John E. Neelis, Secretary. 



III. 
PROCLAMATION 

BY THE GOVERNOR OF LOUISIANA. 

Whereas, R. K. Howell, president pro tem. of the Convention for the revision 
and amendment of the Constitution of Louisiana, has issued an order reconvok- 
ing the said Convention, to meet in the city of New Orleans on the thirtieth 
day of July inst., and 

Whereas, in the same document, and in conformity to a resolution of that 
body, he has called on the Governor of the State to issue writs of election for 
delegates to said Convention in all parishes not represented therein ; 

Now, therefore, I, J. Madison Wells, Governor of the State of Louisiana, do 
issue this my proclamation, commanding that an election be held on Monday, 
the third day of September, 1866, by the qualified voters, for delegates to the 
aforesaid Convention, as follows : — 

(Here follows a list of the parishes in which elections were to be held.) 

And I do further command all sheriffs, commissioners of elections, and other 
officers therein concerned, to hold the said election as herein ordered, the pro- 
ceedings to be conducted according to law, and no person will have the right to 
vote unless he has restored his citizenship by having taken the oath, before com- 
petent authority, as prescribed in the amnesty proclamations of the President of 
the United States, either of January 1st, 1864, or May 29th, 1865. 

All persons excluded from general amnesty by being embraced in any of the 
articles of exception contained therein, will not be allowed to vote unless spe- 
cially pardoned by the President. 

Prompt returns will be made of said election to the Secretary of State, for 
all of which this proclamation, without further notice, will serve as authority. 

Given under my hand at the city of New Orleans, this twenty-seventh day 
of July, A. D. 1866, and the independence of the United States the ninety- 
first. J. MADISON WELLS. 
Attest : 

A true copy. N. C. Snethen, Private Secretary. 



INDEX. 



A. 

Acts, enabling, Conventions called in pur- 
suance of, § 195, and note 1 ; can legis- 
latures bind Conventions by their? §§ 376- 
418 ; calling Conventions, analysis and 
essential character of, §§ 404-408. 

Adams, John, connection of, with the form- 
ation of the first American Constitutions, 
§§ 128, 129, 489; appointed on the com- 
mittee to draft the Massachusetts Constitu- 
tion of 1780, § 157. 

Adams, John Quincy, opinion of, bearing 
on the question of American nationality, 
§48. 

Adams, Samuel, appointed on the commit- 
tee to draft the Massachusetts Constitution 
of 1780, § 157. 

Alabama, Convention of, of 1819, § 195; 
do. of 1861 (Secession), §§ 247-249; do. of 
1865 (reconstruction), §§ *250-259. 

Allegiance defined, and to whom owing in 
the United States, §§ 52, 53; "Allegiance 
Cases," so called, in South Carolina, § 53, 
note 2; quasi, defined, 53. 

Amendments to Constitutions, necessity of 
providing for, §§ 52.5-529 ; various modes 
of effecting, §§ 526, 530, 531; excellences 
and defects of the several modes, §§ 532- 
534, 538-540; precedents of the employ- 
ment of these modes, §§ 535-537, 541-546; 
where a legislature participates in effecting, 
nature of its act, §§ 547-550 ; extent of 
the power of a legislature to recommend, 
§§ 551-555 ; where a legislature recom- 
mends, should they be submitted to the 
executive for approval? §§ 556-562; where 
a State legislature has once rejected amend- 
ments proposed by Congress to the Fed- 
eral Constitution, can it or its successor 
reconsider them ? § 563 ; where the Consti- 
tution provides a mode of effecting, can 
another and different mode be employed ? 
§§ 564-576. 

Appropriations, power of Conventions to 
make, of moneys from the public treasury, 
§§ 435-441. 

Arkansas, Convention of, of 1836, §§ 196, 
197; cases in Supreme Court of, respect- 
ing the extent of the power of a legisla- 
ture to propose amendments to a Consti- 
tution, §§ 551-555. 



Arrest, power of Conventions to make, of 
their own members or of strangers, §§ 
460-470. 

Articles of Confederation, history and char- 
acter of, §§ 159-162. 

Assembly, the General, or legislative Con- 
vention, described, § 6; see also legisla- 
ture. 

Attributes of sovereignty specified, § 22. 

Austin, John, marks of sovereignty laid 
down by, § 19 ; opinion of, as to the locus 
of sovereignty in the United States, § 60 ; 
do. as to an ulterior legislature in New 
York, superior to the ordinary legislature, 
§ 513, note 1. 

Autocracies, Constitutions of, described, 
§70. 

B. 

Banks, Nathaniel P., General, proclamation 
of, for the reconstruction of Louisiana, 
§ 256. 

Belknap, Dr., historian of New Hampshire, 
quoted, as to the first Convention of that 
State, § 131. 

Bills oi^ Rights, description, history, and ob- 
jects of, §§ 96-99; why no, in the Federal 
Constitution, § 98; clause in American, 
generally, respecting altering or abolishing 
government, commented on, §§ 240-246. 

Bowdoin, James, appointed on the commit- 
tee to frame Massachusetts Constitution 
of 1780, § 157. 

Bramlette, Governor of Kentucky, opinion 
of, respecting the power of a State legisla- 
ture to reconsider amendments to the Fed- 
eral Constitution proposed b}' Congress 
and once rejected, § 563. 

Brownson, Orestes A., Dr., opinion of, as 
to the mode in which sovereignty inheres 
in the people of the United States, § 61; 
distinction drawn by, between Constitu- 
tions as facts and Constitutions as instru- 
ments of evidence, § 63, note 1. 

Buchanan, James, President, opinion of, 
respecting the Topeka and Lecompton 
Conventions, § 214. 

Burke, Edmund, moral competence of gov- 
ernments defined by, § 305; sarcasm of, 
respecting the French Bill of Rights of 
1793, § 317. 



652 



INDEX. 



Butler, Benj. F., quoted, as to conventional 
sovereignty, §§ 311, 343; speech of, on the 
right of Conventions to issue precepts to 
the electors, § 343. 



c. 



Calhoun, John C, opinion of, respecting 
the bearing of the mode of ratifying the 
Federal Constitution, on the question of 
American nationality, § 37 ; speech of, on 
the Michigan Convention of December, 
1836, § 204. 

Censors, Council of, a device for effecting 
the amendment of Constitutions more in- 
genious than useful, § 544. 

Citizens, can Conventions limit eligibility 
to office to naturalized ? §§ 355-361 ; clause 
of the Federal Constitution as to rights of, 
considered, § 358-361. 

Citizenship, rights belonging to mere, in 
the several States, §§ 359-361. 

Committee of the whole, use of, in Con- 
ventions, §§ 290, 291 ; of revision, duty 
and importance of, § 303; of the Illinois 
Convention of 1862, on the powers of Con- 
ventions, § 308. 

Committees, use of, in Conventions, §§ 
285-294; members of, in various Conven- 
tions, and reasons for and against employ- 
ment of, §§ 287-295; number and duties 
of, how determined; precedents stated, § 
296. 

Compact, are Constitutions, as facts, founded 
onV §§ 65-67; ^re Constitutions, as instru- 
ments of evidence, founded on ? § 68. 

Congress, the Continental, advice of, to 
Massachusetts, New Hampshire, Virginia, 
and South Carolina, in 1775, relative to 
the establishment therein of governments 
independent of the crown, § 127 ; resolution 
of, of May 10, 1776, respecting the formation 
of such governments in the colonies gener- 
ally, §§ 128, 129; as a Convention, framing 
the Articles of Confederation, historj' and 
character of, §§ 159-161 ; a Provincial, the 
first independent government of South 
Carolina, § 131 ; do. of New Jersey, § 139 ; 
do. of Maryland, § 145 ; do. of Georgia, § 
147 ; do. of New York, § 150. 

Congresses, Provincial, revolution of 1776 
consummated by, § 10 ; historv and powers 
of, 126. 

Connecticut, Convention of, of 1818, § 219, 
and note 1. 

Constitution, theory of the, fundamental 
to this inquiry, § 17; the term defined, § 
63; of the United States, bearing of the 
mode of ratification of, on the question of 
American nationality, §§ 37, 38 ; character 
of, as regarded by the Conventions called 
to ratify it, § 42 ; opinion of Patrick Henry 
as to its character, § 42; opinion of Mr. 
Taylor of North Carolina, § 42 ; forms part 
of the Constitutions of the several States, 
§ 92; is supreme, §§ 93, 94; should be kept 
independent of those of the States, § 95; 
opinion of Mr. Webster on the point, § 95 ; 



distinction between a, and an ordinary 
municipal law, §§ 85-87; the term, how 
used in this treatise, § 103; may become 
valid, though the Convention which framed 
it is illegitimate, § 124 : the first New Hamp- 
shire, formation of, § 131 ; the New Hamp- 
shire, of 1783, formation of, § 132 ; the first 
South Carolina, § 133 ; the South Carolina, 
of 1778, formation and character of, § 136 ; 
the first American, by whom framed, § 138, 
note 1; the Virginia, of 1776, validity of, 
considered, § 138, note 2 ; the New York, 
of 1777, character of, § 152 ; the Vermont, 
of 1777, character of, § 154 ; attempts of 
the General Assembly to give validity to, 
§ 154 ; the, framed bv the Federal Conven- 
tion of 1787, character of, § 166 ; the Ken- 
tucky, of 1792, formation of, §§ 173, 174; 
the Tennessee, of 1796, formation of, §§ 
175-182 ; the Maine, of 1819, formation of, 
§§ 183-185 ; the West Virginia, of 1863, 
formation of, §§ 189, 190; signing of a, by 
members of a Convention, § 304 ; Federal, 
power of Conventions, as legislatures, to 
ratify proposed amendments to, § 447; 
Trial of the, hy Fisher, quoted as to the 
inadequacy' of the provision of the Federal 
Constitution for its own amendment, § 543, 
note. 
Constitutions as objective facts, distin- 
guished from Constitutions as instruments 
of evidence, § 63; " as they ought to be," 
defined and contrasted with Constitutions 
as objective facts, § 64; nature and varie- 
ties of, as objective facts, §§ 65-70; are 
they founded on compact V §§ 65-67 ; are, 
as instruments of evidence, founded on 
compact? § 68; where discrepancies exist 
between, as objective facts, and as instru- 
ments of evidence, which have the supe- 
rior validit}' ? § 69 ; varieties of, as instru- 
ments of evidence, § 71; cumulative, de- 
fined, § 72; enacted, defined, § 73; written 
and unwritten, defined and contrasted, §§ 
74-76; advantages of written, § 77; dis- 
advantages of, § 78 ; opinion of De Mais- 
tre, § 78, note 1; advantages of unwritten, 
§ 79 ; disadvantages of, § 80 ; balance of 
excellences and defects between the two, 
§81; requisites for safe operation of writ- 
ten, §§ 82, 83; all, save two, in the United 
States, have been written, § 84 ; varieties, 
mutual relations, and internal structure of 
the American, §§ 84, 88-103; two varieties 
of — those framed for the United States 
and those framed for the States, § 88 ; dis- 
tinctions between the two, §§ 88-95 ; rules 
of construction applicable to them respect- 
ively, § 91 ; the Federal Constitution a 
part of the several State, § 92 ; of the sev- 
eral States, part of the Federal Constitu- 
tion, § 92; of the States and of the Union 
should be kept independent; opinion of 
Mr. Webster, § 95 ; internal structure of 
American, §§ 96-103 ; generallv contain, 1, 
Bill of Rights, §§ 96-99 ; 2, Frame of Gov- 
ernment, §§ 100, 101; 3, Schedule, §§ 102, 
103 ; resolution of the Continental Con- 
gress respecting the formation of the earli- 



INDEX. 



553 



est, in the colonies, §§ 128, 129; first two 
of South Carolina, judicial decision as to 
validity of, § 136, note 2; can Conventions 
be bound by the Acts calling them to make 
submission of, to the people V §§ 410-414 ; 
submission of, to the people, duty of Con- 
ventions in general to make, § 479 ; duty, 
where neither the Convention Act nor the 
Constitution requires it, § 481 ; duty, where 
submission is expressl}- required by law, 
§§ 482, 483; duty, where submission is ex- 
pressly dispensed with, §§ 484-486; prece- 
dents relating to the submission of, §§ 487- 
495; by whom submission of, should be 
made, §§ 497-499; to whom submission of, 
should be made, §§ 500-509 ; nature of the 
act pertbrmed by the people, where sub- 
mission of, is made, §§ 510-513; manner in 
which submission of, should be made, §§ 
514-520 ; promulgation of, §§ 521-524 ; 
amendments to, general doctrine as to 
stated, §§ 525-529; opinion of the judges 
of the Massachusetts Supreme Court re- 
specting the powers of Conventions to 
make amendments to. Appendix C, p. 540. 
Convention, The Constitutional, em- 
ployed in America to frame the fundamen- 
tal law, § 1; importance of, in general, § 2; 
relation of, to secession, § 3; The Spon- 
taneous, or Public Meeting, § 5 ; The 
Legislative or General Assembly, 
§ 6 ; The Revolutionary, § 7 ; examples 
of the Revolutionary, in England, § 8; do. 
in America, § 9 ; Revolutionary, of Massa- 
chusetts, of 1689, § 9; French National, 
§ 10; The Constitutional, defined and 
contrasted with the foregoing, § 11 ; exer- 
cising usurped powers, how to be classed, 
§ 12; the Revolutionary, exercising the 
powers of a Constitutional, how to be 
classed, § 12; the Constitutional, summarj' 
of history of, §§ 13, 14; an adaptation to 
constitutional uses, of the Revolutionary, 
§ 15; misconceptions prevalent respecting 
the nature of, § 15 ; constitutes one of the 
five agencies through which sovereignty 
indirectly manifests itself, § 24; relative 
rank of, § 24; Federal, of 1787, action of, 
respecting the ratification of the Federal 
Constitution, §§ 36, 37, 166 ; proper modes 
of initiating or calling a, §§ 104, 114-116; 
by whom should a, be called? §§ 118-121; 
in what manner should a, be called V §§ 122, 
123; opinion of the New York Council of 
Revision on the proper mode of calling a, 
§ 122; although a, be illegitimate, the Con- 
stitution framed by, may become valid, 
§ 124; the first independent government 
of. Virginia, a Provincial, § 138; do. of 
Pennsylvania, § 143; do. of North (Jarolina, 
§ 145; do. of Massachusetts, § 156; history 
and character of the New Hampshire, of 
1775. § 131 ; do. of 1778, § 132 ; do. of 1781, 
§ 132; the South Carolina, of 1776, §§ 133, 
134; do. of 1778, §§ 135-137; the Virginia, 
of 1776, § 138; the New Jersey, of 1776, 
§§ 139, 140; the Delaware, of 1776, §§ 141, 
142; the Pennsylvania, of 1776, §§ 143, 
144; the Maryland, of 1776, § 145; the 



North Carolina, of 1776, § 146 ; the Geor- 
gia, of 1776, § 147 ; do. of 1788, §§ 148, 
149, 167 ; do. of January, 1789, § 147, 167, 
217, 219; do. of May, 1789, §§ 148, 149, 167, 
217, 219; the New York, of 1776, §§ 150- 
152 ; the Vermont, of 1777, §§ 153, 154 ; do. 
of 1785, and of 1786, § 155; the Massachu- 
setts, of 1778, § 156 ; do. of 1779, §§ 157, 158 ; 
the Continental Congress, acting as a,§§ 160, 
161; the Annapolis, § 163; the Federal, of 
1787, §§ 163-166 ; the Kentucky, of 1792, §§ 
173, 174; the Tennessee, of 1796, §§ 175- 
182; the Maine, of 1819, §§ 18.3-185; the 
Virginia (Reconstruction), of 1861, § 186; 
the Ohio, of 1802, § 195 ; the Louisiana, of 
1811, § 195; the Indiana, of 1816, § 195; 
the Mississippi, of 1817, § 195; the Illinois, 
of 1818, § 195 ; the Alabama, of 1819, § 195 ; 
the Missouri, of 1820, § 195 ; the Texas, of 

1845, § 195; the Wisconsin, of 1846, § 195; 
the Minnesota, of 1857, § 195 ; the Kansas, 
of 1859, § 195; the Nevada, of 1864, § 195; 
the Iowa, of 1844. §§ 196, 197. 210; do. of 

1846, §§ 196, 197, 210 ; the Wisconsin, of 

1847, §§ 196, 197, 210; the California, of 
1849, §§ 196, 197, 210; the Kan.^as, of 1855, 
§§ 196, 197, 211, 212; do. of 1857, §§ 196, 
197, 213-216; do. of 1859, § 216; the Ore- 
gon, of 1807, §§ 196, 197, 210; the Nevada, 
of 1863, §§ 196, 197, 210; the Michigan, of 
1835, §§ 196-198, 201, 208; do. of Septem- 
ber, 1836, §§ 196-199, 202; do. of Decem- 
ber, 1836, §§ 196, 197, 199-201, 203-209; 
the Arkansas, of 1836, §§ 196, 197, 210; 
the Florida, of 1839, §§ 196, 197, 210; the 
Georgia, of 1795, and of 1798, §§ 217, 218; 
the Kentucky, of 1799, and of 1849, §§ 217, 
218; the Delaware, of 1831, and of 1852, 
§§ 217, 218 ; the Mississippi, of 1832, §§ 217, 
218; the Tennessee, of 1834, §§ 217, 218; 
the Louisiana, of 1844 and of 1852, §§ 217, 
218 ; the Illinois, of 1847 and of 1862, §§ 
217, 218; the Ohio, of 1850, §§ 217, 218; 
the Michigan, of 1850, §§ 217, 218; the 
New Hampshire, of 1850, §§ 217, 218; the 
Georgia,of 1838, §§ 217, 219 ; the South Car- 
olina, of 1790, §§ 217, 219 ; the New Hamp- 
shire, of 1791, §§ 217, 219; the New York, 
of 1801, of 1821, and of 1846, §§ 217, 219; 
the Connecticut, of 1818, §§ 217, 219; the 
Massachusetts, of 1820, and of 1853, §§ 217, 
219; the Rhode Island, of 1824, of 1834, 
of 1841 (under the charter), and of 1842, 
§§ 217, 219; the Virginia, of 1829, of 1850, 
and of 1864, §§ 217, 219 ; the North Car- 
olina, of 1835, §§ 217, 219; the Pennsyl- 
vania, of 1837, §§ 217, 219 ; the New Jer- 
sev, of 1844, §§ 217, 219; the Missouri, of 
1845, of 1861, and of 1865, §§ 217, 219; the 
Indiana, of 1850, §§ 217,219; the Vermont, 
of 1785, &c., &c., §§ 220; the Pennsylva- 
nia, of 1789, §§ 221-225; the Delaware, of 
1792, §§ 221-225 ; the Maryland, of 1850, 
§§ 221-225; the Rhode Island, of 1841 
("People's Convention"), §§ 226-246; by 
whom a, should be elected, § 104 ; by whom 
the delegates were elected to the Pennsyl- 
vania, of 1776, §§ 263; do. of 1789, and of 
1837, § 262; to the Ohio, of 1850, § 262; to 



2S(; 



654 



INDEX. 



the Michigan, of 1850, § 262; to the Iowa, 
of 1857, § 232; to the Minnesota, of 1857, 
§ 262 ; to the Kansas, of 1859, § 262 ; to the 
West Virginia, of 1861, § 262; to the Mary- 
land, of 1861, § 262 ; to the Massachusetts, 
of 1779, of 1821, and 1853, § 262; to the 
Delaware, of 1776, § 263; do. of 1831, and 
of 1852, § 262; to the North Carolina, of 
1776, § 263; do. of 1835, § 262; to the New 
York, of 1821, § 264, 266; do. of 1846, 
§262; to the Illinois, of 1847, and 1862, 
§ 262; to the Kentucky, of 1849, § 262; to 
the Virginia, of 1829, and of 1850, § 262; 
to the Vermont, of 1777, § 263 ; to the Geor- 
gia, of 1776 and of 1788, §§ 264, 266 ; to 
the Maine, of 1819, § 262; to the New 
Hampshire, of 1850, § 262; to the Wiscon- 
sin, of 1847, § 262 ; to the California, of 
1849, § 262; to the Kansas, of 1859, § 262; 
to the Rhode Island, of 1841, §§ 265, 266 ; 
Qualilications required for delegates to the 
New York, of 1821, § 267; to the North 
Carolina, of 1835, § 267; to the Pennsyl- 
vania, of 1837, § 267; to the New Hamp- 
shire, of 1850, § 267; to the Ohio, of 1850, 
§ 267 ; to the Delaware, of 1852, § 267 ; to 
the Iowa, of 1857, § 267; to the Maryland, 
of 1864, § 267 ; to the Nevada, of 1864, 
§ 267 ; the Minnesota of 1857, divided into 
two Conventions, § 270; the New Jersey, 
of 1844, delegates elected to, from all par- 
ties, § 271; can a, appoint ofticers to fill 
vacancies in the government V §§ 325-330 ; 
can a, eject from office persons appointed 
thereto Ijy the government V §§ 325, 326 ; 
can a, direct government officers in the 
discharge of their duties? §§ 325, 326; 
Missouri of 1865, ordinance of, to vacate 
offices under the State government, §§ 
327-330; is the Act calling a, a govern- 
ment measure ? § 398; Opinion of the Su- 
preme Court of New York as to the power 
of a legislature to modify the Act calling 
a. Appendix D., p. 542 ; of Louisiana, of 
1864, official proceedings culminating in 
the reassembling of, in 1866 ; Appendix E., 
p. 545. 
Conventions, Varieties of, in the United 
States. §§ 4-16 ; Spontaneous, described, 
§§ 4, 5 ; Legislative, or General Assemblies, 
§ 6 ; Revolutionary, §§ 7-10; Constitutional, 
§§ 11-16 ; Provincial, or Congresses, §§ 10, 
126; to ratify the Federal Constitution, 
opinions expressed in, as to its character, 
§ 42; of the Revolutionarv period, from 
1776 to 1789, §§ 126-169 ; called to ratify 
Federal or State Constitutions, § 167; of the 
post-revolutionary period, from 1789 to the 
present, §§ 170-259 ; called to frame Con- 
stitutions for States to be formed within the 
jurisdiction of States members of the Union, 
§§ 171-193 ; called to frame Constitutions 
for States to be formed out of Federal Ter- 
ritor}-, under enabling Acts of Congress, 
§ 194, 195 ; without enabling Acts, §§ 196- 
216; called to revise the Constitutions of 
States, members of the Union, §§ 217-259 ; 
called by legislative authority in pursuance 
of constitutional provisions, § 218; called 



by legislative authority without constitu- 
tional provisions, § 219 ; called by Councils 
of Censors, § 220; called bj- legislative au- 
thority, in disregard of constitutional pro- 
visions, §§ 221-225; called in defiance of 
the existing government, §§ 226-246; se- 
cession, §§247-249; reconstruction, §§ 250- 
2-59 ; by whom delegates to, should be and 
are elected, §§ 260-266 ; who may be mem- 
bers of, §§ 267-269 ; constitution of, in one 
chamber or in two, §§ 270, 271; internal 
organization of, §§ 272-284; officers of, 
§ 274; should members of be sworn? form 
of oath, §§ 277-283 ; mode of proceeding 
of, §§ 285-304; emplo3'ment of committees 
in, §§ 285-294; standing committees of, 
§ 295 ; powers of. §§ 305-478 ; two theories 
as to powers of, §§ 307-310 ; theory of the 
sovereignty of, a novelty, §§ 311, 312; ques- 
tion of the sovereignty of, considered, §§ 
315-319; powers of, with reference to the 
government of the state, as a whole, §§ 
320-330; can they fill vacancies in the va- 
rious governmental departments? §§ 325, 
327-330; can they eject from office appoint- 
ees of the government? §§ 325-330; can 
they direct governmental officers in the dis- 
charge of their duties ? §§ 325, 326 ; powers 
of, with reference to the electors, §§ 831- 
364 ; can they disfranchise electors ? §§ 335- 
337; can they fill their own vacancies? 
§ 338 ; can they authorize the colleagues 
of deceased or resigning members to name 
their successors ? § 339 ; can they issue pre- 
cepts to the electors directing them to fill 
vacancies? §§ 340-347; can the electors 
hold elections to fill vacancies in, at such 
time or manner as they may think fit? 
§§ 348, 349 ; can they receive as delegates, 
persons elected at a time or in a manner 
not provided by law ? § 350 ; can they limit 
the discretion of the electors, or of the sov- 
ereign, in the discharge of their duties? 
§§ 351-362; can the electors instruct their 
delegates to? §§ 362-364; relations of, to 
the executive and judiciary, § 366; rela- 
tions of, to the legislature, and powers there- 
from resulting, §§ 366-449: are but mere 
committees, § 367 ; structure and functions 
of, contrasted with those of legislatures, 
§§ 367-375; power of", to annul perfect 
rights, § 370, note 1 ; can legislatures bind ? 
§§ 376-418; power of legislatures to dictate 
to, what they shall or shall not recommend, 
§§ 381, 382 ; question discussed in various, 
§§ 383-387 ; where Acts of the legislature, 
which have been voted on by the people, 
are conceded to bind, source of their va- 
liditj-, §§ 389-409; can legislatures bind, 
to submit the fruit of their labors to the 
people? §§ 410-418; do Conventions pos- 
sess legislative powers, §§ 419-441 ; power 
of, to repeal ordinary laws, §§ 430-434; 
power of, to appropriate money, §§ 435- 
441 ; power of, as legislatures, to prescribe 
the times, places, and manner of electing 
senators and representatives in Congress, 
§§ 442-446; power of, as legislatures, to 
ratify proposed amendments to the Federal 



INDEX. 



655 



Constitution, § 447; power of, to fetter a 
discretion contided by the Federal Consti- 
tution to a State legislature, §§ 448, 449 ; 
powers of, with reference to their internal 
relations, express and implied, §§ 450-470 ; 
powers of, with reference to their organiza- 
tions, to the maintenance of order and to 
the conduct of their business, §§ 454-458 ; 
power of, to arrest or punish their own 
members or strangers, §§ 459-470; priv- 
ileges of members of, §§ 471, 472; power 
of, to prolong or perpetuate their existence, 
§§ 473-478 ; duty of, to submit their work 
to the people, in general, § 479 ; duty of, 
where neither the Convention Act nor the 
Constitution requires submission, § 481; 
duty of, where submission is expressly re- 
quired by law, §§ 482, 483 ; duty of, where 
submission is by law expressly dispensed 
with, §§ 484-486 ; list of all that have been 
held in the United States. Appendix A., 
p. 533. 

Corollaries, practical, relating to the exer- 
cise of sovereignty, § 25. 

Council of Censors, a device for effecting 
the amendment of Constitutions more in- 
genious than useful, § 544. 

Council of Revision, New York, opinion 
of, relating to the proper manner of calling 
a Convention, §§ 122, 484, 534, and Appen- 
dix B., p. 538. 

Counter - Kevolutions, description of, § 
111. 

Court, Supreme, of the United States, opin- 
ion of, bearing on the question of Ameri- 
can nationality, § 46 ; opinion of, bearing 
on the question whether the States were 
sovereign under the confederation, § 50; 
of South Carolina, as to the validity of the 
first two South Carolina Constitutions, 
§ 136, note 2 ; of Michigan, and of Ohio, 
on the validity of the first Convention of 
Michigan, and of the government estab- 
lished thereby, §§ 207, and note 1, on p. 
198; of the United States, on the same 
question, §§ 207, 208 ; do. on the validity 
of the " People's Constitution " and gov- 
ernment of Rhode Island, §§ 229-231; of 
Massachusetts, opinion of, on the binding 
force upon a Convention, of the Act under 
which it assembles, §§ 388, 389 ; Appendix 
C, p. 540; of New York, opinion of, on the 
same question, §§ 390-399; Appendix D., 
p. 542; of Illinois, opinion of, as to repeal- 
ibility of an Act submitted to and adopted 
by the people, §§ 407, 408 ; of Delaware, 
opinion of, relative to legislation by the 
people, § 418; of Illinois, decision of, re- 
specting the "Chicago Ordinance," § 432; 
of Arkansas, opinion of, respecting the 
extent of the power of a legislature to 
recommend amendments to a Constitu- 
tion, §§ 551-555. 



D. 



Dallas, George M., opinion of, as to the pow- 
ers of Conventions, § 308. 



Davis, Henry Wmter, speech of, on the Le- 

compton Convention, § 215. 
Debates of Conventions, character of, § 457; 

provisions for preserving, § 275. 
Delaware, Convention of, of 1776, §§ 141, 

142; do. of 1792, ^§ 221-225; do. of 1831 

and of 1852, §§ 217,218. 
Delegates, to Conventions, who may be, §§ 

267-269 ; can Conventions receive as, per- 
sons elected at a time or. in a manner not 

provided by law? § 350. 
De Maistre, opinion of, respecting written 

Constitutions, § 78, note 1. 
Democracies, Constitutions of, § 70. 
Dorr, Thomas W., elected Governor of 

Rhode Island by the " people's party," 

§ 228. 

E. 

Elections to fill vacancies in Conventions, 
when and how to be made, §§ 348, 349. 

Electors, the, one of the agencies through 
which sovereignty indirectly manifests it- 
self, § 24; relative rank of, § 24; impro- 
priety of leaving the duty of calling Con- 
ventions to, § 118; commonly the only 
constituents of Conventions, §§ 260-266; 
functions and relations to Conventions of 
the, §§ 314, 331-334, 364 ; powers of Con- 
ventions with reference to the, §§ 335-365; 
can Conventions disfranchise? §§ 335-337; 
can Conventions exercise the functions of, 
to elect delegates to fill vacancies in their 
own ranks, or authorize the colleagues of 
deceased or resigning members to fiU 
them ? §§ 338, 339 ; can Conventions issue 
precepts to the, directing elections to fiU 
vacancies? §§ 340-347; can elections be 
held by the, at any time or manner they 
may think fit? § 348; can Conventions 
limit the discretion of the, in regard to the 
persons whom they shall or shall not elect 
to office? §§ 351-361; can the, instruct 
their delegates to Conventions? §§ 362- 
364. 

Ewing, Thomas, speech of, on the Michi- 
gan Convention of December, 1836, § 205. 

Executive, the, one of the agencies through 
which sovereignty indirectly manifests it- 
self, § 24 ; relative rank of, § 24 ; impropri- 
ety of leaving the duty of calling Conven- 
tions to, § 120; relations of, to Conven- 
tions, § 366. 

Executive act, the act of the people in pass- 
ing upon a fundamental law, not an, 
§§ 510-513. 



F. 



Federal Convention of 1787, §§ 163-166; 
discussion in, as to binding force upon it- 
self of the acts under which it assembled, 
§§ 383-386. 

Pisher, Trial of the Constitution, quoted, as 
to the inadequacy of the mode provided in 
the Federal Constitution for its own amend- 
ment, § 543, note. 



556 



INDEX. 



Florida, Convention of, of 1839, §§ 196, 197 ; 

do. of 1861, §§ 247-249; do. of 1865, 

§§ 250-259. 
Frame of Government, as a part of the 

American Constitutions, definition and 

contents of, §§ 100, 101. 
Frankland, State of, § 175. 
Franklin, Benjamin, sketch of Articles of 

Confederation prepared by, § 159. 



G. 



Gaston, the Hon. Mr., opinion of, as to the- 
powers of the North Carolina Convention 
of 1835, § 387. 

Georgia, Convention of, of 1776, § 147 ; do. 
of 1788, §§ 148, 149; do. of January, 1789, 
and of May, 1789, §§ 148, 149, 219, note 
1; do. of 1795 and of 1798, §§ 217, 218, 
note 1; do. of 1838, § 219; do. of 1861, 
§§ 247-249; do. of 1865, §§ 250-259. 

Government, leading principles of the 
American system of, § 1; branches or 
departments of, by which sovereignty is 
indirectlj' manifested, § 24; relative rank 
of the various departments of, § 25; was 
that established by the Federal Constitu- 
tion a consolidated ? §§ 42-45 ; opinion of 
Patrick Henry as to the character of the 
Federal, § 42; opinion of Mr. Taylor, of 
North Carolina, § 42; opinion of James 
Wilson, of Pennsylvania, § 42; defini- 
tion of a consolidated, § 43 ; of the United 
States, partly Federal, partly National, 
§ 43 ; form of, in the colonies, in the early 
period of the Revolution, §§ 126, 127, 133, 
137, 139, 143, 145, 146, 147, 150, 156; is 
the Convention a part of the system of? 
§ 320 ; are members of Conventions officers 
of? §§ 823-324; can a Convention appoint 
ofiicers to fill vacancies in? §§ 325-330; 
can a Convention eject from office persons 
holding office under? §§ 325, 326; can a 
Convention direct officers of, in the dis- 
charge of their duties ? §§ 325, 326 ; is an 
Act calling a Convention a government 
measure ? § 398 ; is a power to recommend 
amendments to a Constitution amongst the 
general powers of? § 555. 

Grimke, Mr., of South Carolina, opinion of, 
quoted, § 48. 

H. 

Hallett, B. F., argument of, in the case of 
Luther v. Borden, § 233; opinion of, re- 
specting the sovereignty of Conventions, 
§ 311 ; speech of, on the right of Conven- 
tions to issue precepts to the electors, 
§ 344. 

Hamilton, Alexander, opinion of, as to the 
powers and dutv of the Federal Conven- 
tion, §§ 40, 385. ' 

Henry, Patrick, opinion of, as to the locus 
of sovereignty in the United States, § 42. 

Howe, Senator, opinion of, respecting the 
submission to the executive of amend- 



ments proposed by Congress to the Federal 
Constitution, § 559. 

Howell, R. K., Judge, appointed president 
pro tern, of the Louisiana Convention of 
1864, § 475. 

Hurd, John Codman, opinion of, as to the 
locus of sovereignty in the United States, 
§ 60 ; on the distinction between Constitu- 
tions, as objective facts, and as instruments 
of evidence, § 63, note 1. 



Illegitimate and revolutionary, distinction 
between, § 113. 

niinois. Convention of, of 1818, § 195 ; do. 
of 1847, and. of 1862, §§ 217, 218; do. of 
1862, form of oath administered to mem- 
bers of, §§ 282, 283; do. of 1862, charge 
against members of, of complicity with 
Knights of the Golden Circle, §§ 467, 468. 

Indiana, Convention of, of 1816, § 195 ; do. 
of 1850, § 219. 

Instructions, can the electors give, to their 
delegates to Conventions ? §§ 362-364. 

Iowa, Convention of, of 1844, §§ 196, 197; 
do. of 1846, §§ 196, 197 ; do. of 1857, §§ 
217, 218. 



Jay, John, participation of, in the formation 
of the New York Constitution of 1777, §§ 
151, 152. 

Jeflferson, Thomas, character of the Vir- 
ginia Convention of 1776, as given by, § 
138; opinion of, respecting the repealabil- 
ity of the Virginia Constitution of 1776, 
§ 138, note 2; opinion of, respecting the 
amendment of Constitutions, §§ 82, 535, 
note. 

Johnson, Andrew, President, proclamations 
of, relating to the reconstruction of the 
seceded States, § 257. 

Johnson, Reverdy, Senator, speech of, 
quoted, respecting the submission to the 
executive of amendments proposed by 
Congress to the Federal Constitution, § 
560. 

Judicial act, the act of the people in pass- 
ing upon a fundamental law, not a, § 510. 

Judiciary, the, one of the agencies through 
which sovereignty indirectly manifests it- 
self, § 24; relative rank of, § 24; impro- 
priety of leaving to, the duty of calling 
Conventions, considered, § 119; relations 
of, to Conventions, § 366. 



K. 

Kansas, Convention of, of 1855 (Topeka), §§ 
211, 212: do. of 1857 (Lecompton), §§ 213- 
216; do. of 1859 (Wyandotte), §§ 195, 216; 
submission of Constitution of, of 1857, to 
the people, §§ 415, 416, 514:-520. 



INDEX. 



667 



Kent, .Tames, Chancellor, opinion of, bearing 
on the question of American nationality, 
§48. 

Kentucky, erection of the District of, into 
a State; historv of Convention of, of 179-2, 
§§ 17.3, 174; Conventions of, of 1799 and 
1849, §§ 217, 218 ; resolutions of, of 1798, 
§§ 47, 50. 

Knights' of the Golden Circle, charge of 
complicity with, against members of the 
Illinois Convention of 1862, §§ 467, 468. 



Ijaw, fundamental, or Constitution, a funda- 
mental conception in this inquiry, § 17; 
fiindamentul and ordinary municipal, dis- 
tinction between, §§ 85-87; duty of legis- 
latures to frame the municipal, and of 
Conventions to frame the fundamental, §§ 
370-372 ; language of a, § 406. 

Ijaws, power of Conventions to repeal ordi- 
nary, §§ 430-434. 

Lecompton Convention of Kansas, history 
and character of, §§ 213-216 ; Constitution, 
submission of, to the people, §§ 517-520. 

Legislation, various kinds of, how effected 
here and in other countries, § 1 ; are acts 
calling conventions properly acts of ordi- 
nary? §§404-409; the act "of the people 
in passing upon a fundamental law an act 
of, § 513. 

Legislative powers, do Conventions possess ? 
§§ 419. 

Legislature, the, or General Assembly, de- 
scribed, § 6 ; one of the agencies through 
which sovereignty indirectly manifests it- 
self, § 24; relative rank of, § 24; the proper 
body to call Conventions, §§ 121, 394-396; 
relative numbers constituting the, in Eng- 
land and the United States, § 121; of Vir- 
ginia, of May 6, 1862, validity of, §§ 191- 
193 ; relations of Conventions to the, and 
their powers resulting therefrom, §§ 366- 
418; structure and functions of the Con- 
vention contrasted with those of the, §§ 
367-375; can the, bind the Convention, §§ 
376-418; limits of the power of the, to 
restrict the Convention in general, §§ 379- 
382 ; power of the, to dictate to the Con- 
vention what it shall or shall not recom- 
mend, §§ 381, 382; question discussed in 
various Conventions, §§ 383-387; where 
Acts of the, which have been voted on by 
the people, are conceded to bind the Con- 
vention, source of their validity, §§ 389- 
409; can the, bind the Convention by its 
Acts to submit the fruit of its deliberations 
to the people V §§ 410-418 ; can a Conven- 
tion act as a, in matters by the Federal 
Constitution required to be transacted by 
the legislatures of the several States? §§ 
419, 442, 447; can a Convention prescribe 
the times, places, and manner of electing 
Senators and Representatives in Congress ? 
§§ 442-446 ; can a, as a legislature, ratify 
proposed amendments to the Federal Con- 
stitution ? § 447 ; a State, power of a Con- 



vention to fetter a discretion confided to, 
by the Federal Constitution, §§ 419, 448- 
449 ; where amendments to a Constitution 
are recommended by a, nature of its act, 
§§ 547-550 ; extent of the power of a, to 
recommend amendments to a Constitution, 
§§ 551-555; where amendments are recom- 
mended by a, should they be submitted 
to the executive for approval ? §§ 556-562 , 
where a State, has once rejected amend- 
ments proposed by Congress to the Fed- 
eral Constitution, can it, or its successor, 
reconsider them ? § 563. 

Legitimacy, the term defined and illus- 
trated, §§ 105-108. 

Lex Farliamentaria, how far the, prevails in 
Conventions, § 459. 

Lincoln, Abraham, President, proclamation 
of, of December 8, 18G3, relating to the 
reconstruction of the rebel States, § 255. 

Locus of sovereignty theoretically consid- 
ered, § 21; considered with reference to 
historical facts, in the United States and 
in foreign countries, §§ 26, 27 ; as indicated 
by Austin's marks or tests, § 28; as indi- 
cated by the additional marks laid down 
herein, § 29; as determined by the exer- 
cise of sovereignty, §§ 56, 57. 

Louisiana, Convention of, of 1811, § 195; 
do. of 1844, §§ 217, 218; do. of 1852, §§ 
217, 218; do. of 1861, §§ 247-249; do. of 
1864, §§ 250-259; do. of 1864, case of 
arrest by, §§ 469, 470; do. reassembling 
and dispersal of, in 1866, §§ 474-478; offi- 
cial proceedings culminating in reassem- 
bling of, Appendix, E., p. 545. 

Lowndes, Rawlins, connection of, with the 
formation of the South Carolina Constitu- 
tion of 1778, § 136. 



M. 



Madison, .Tames, opinion of, as to the func- 
tions and duties of the Federal Conven- 
tion, § 40; do. on the question whether the 
States were ever sovereign, § 49 ; as to the 
powers of Conventions, § 309. 

Maine, erection of, into a State, Convention 
of, of 1819, §§ 18.3-185. 

Maine, Henry Sumner, on Ancient Law, 
quoted, § 66. 

Manifestation of sovereignty, modes of, §§ 

Marks or tests of sovereignty, Austin's, § 
19 ; additional, laid down herein, § 20. 

Maryland, Convention of, of 1776, § 145; 
do. of 1850, §§ 221-225; do. of 1864, §§ 
217-218; revolutionary movement in, in 
1837, §§ 204, 224. 

Mason, George, opinion of, as to the powers 
of the P'ederal Convention, § 384. 

Massachusetts, Revolutionary Convention 
in, in 1689, §§ 9, 10 ; first government of, 
independent of the crown, § 127; Conven- 
tion of, of 1778, § 156; do. of 1779, §§ 
157, 1.58; do. of 1820, and of 1853, § 219; 
consent of, to the erection of the District 
of Maine into a State, § 184. 



558 



INDEX. 



May, Thomas P., arrest of, by the Louisi- 
ana Convention of 1864, §§ 469, 470. 

McLean, John, Justice, dissenting opinion 
of, relating to the State government of 
Michigan, framed in 1835, § 208. 

Meeting, Public, or Spontaneous Conven- 
tion, §§ 4, 5. 

Members of Conventions, privileges of, §§ 
471, 472. 

Michigan, Convention of, of 1835, §§ 196- 
198, 201, 208; do. of September, 18.36, §§ 
196-199, 202; do. of December, 1836, §§ 
196, 197, 199-201, 203-209 ; do. of 1850, 
§§ 217, 218. 

MUl, John Stuart, quoted, as to the condi- 
tions of safe political progress, § 529, 
note. 

Minnesota, Convention of, of 1857, §§ 195, 
270. 

Misconceptions respecting the nature of 
Constitutional Conventions, § 15. 

Mississippi, Convention of, Sf 1817, § 195; 
do. of 1832, §§ 217, 218; do. of 1861, §§ 
247-249 ; do. of 1865, §§ 250-259. 

Missouri, Convention of, of 1820, § 195; 
do. of 1845, of 1861, and of 1865, § 219 ; 
do. of 1865, Ordinance of, to vacate offices 
under the State government, §§ 327-330. 

Mode, signification of the terra, when used 
in reference to sovereignty, § 55. 

Monarchies, limited, § 70 ; absolute, § 70. 

Money, power of Conventions to appropri- 
ate, §§ 435-441. 

Morton, Marcus, speech of, on the right of 
Conventions to issue precepts to the elec- 
tors, § 345. 



Nevada, Convention of, of 1863, § 195 ; do. 
of 1864, §§ 196, 197. 

New Hampshire, advice of the Continen- 
tal Congress to, relative to founding new 
government in, § 127; Convention of, of 
1775, § 131 ; do. of 1778 and of 1781, § 132; 
do. of 1791, § 219; do. of 1850, §§ 217, 218. 

New Jersey, Convention of, of 1776, § 139 ; 
do. of 1844, § 219 ; delegates "to the, of 
1844, elected equally from all parties, § 271. 

New York, Convention of, of 1776, §§ 150- 
152 ; consent of State of, to the erection of 
Vermont into a State, § 171, note 1; 
Convention of, of 1801, § 219 ; do. of 1821, 
§ 219 ; do. of 1846, § 219 ; veto of the 
Council of Revision of, of the Convention 
Bill of 1820, Appendix B, p. 538: opinion 
of the .Judges of the Supreme Court of, 
respecting the power of a legislature to 
modify a Convention Act passed upon by 
the people. Appendix D., p. 542. 

Niles, Senator, speech of, on the Michigan 
Convention of December, 1836, § 206. 

Non-Resistance, doctrine of, stated, and 
relation of, to contents of our Bills of 
Rights, §§ 242-244. 

North Carolina, Convention of, of 1776, 
§ 146 ; consent of the State of, to the erec- 
tion of Tennessee into a State; deed of 
cession of, §§ 175-182 ; Convention of, of 
1835, § 219; do. of 1861, §§ 247-249; do. 
of 1865, §§ 250-259; Convention of, of 
1835, oath administered to members of, 
§ 281; do. of 1835, discussion in, as to 
binding form of the Act under which it 
assembled, § 387. 



N. 



O. 



Nation, do the United States constitute a? 
§§ 30-50 ; what it is to be a, § 30 ; what it 
is not to be a, § 31 ; the consolidation of 
the United Colonies into a, the evident 
■purpose of God and of the men of all 
times in America, § 34; bearing of the 
mode of ratifying the Federal Constitution 
on the question whether the United States 
constitute a, §§ 36-38 ; opinions of contem- 
porar3' statesmen on the question, §§ 39, 
45; judicial decisions and opinions of 
statesmen and publicists subsequent to the 
formation of the Federal government, on 
the question, §§ 46-48 ; if the United 
States constitute a, sovereignty resides in 
the nation, §§ 30, 50. 

Nationality, American, the question of con- 
sidered, 30-50 ; successive steps in the de- 
velopment of, in the United States, §§ 34, 
35; bearing on the question of our, of the 
mode of ratify-ing the Federal Constitution, 
§§ 36-38; opinions of contemporary states- 
men on the question, §§ 39-45; opinions 
of statesmen and publicists, and judicial 
decisions, subsequent to the formation of 
the Federal Government, on the question, 
§§ 46-48. 

Nations, method of nature in the genesis of, 
explained, §§ 32, 33. 



Oath, should members of Conventions take 
an? §§ 277, 278; form of, §§ 279-283. 

O'Connor, Charles, argument of, as to the 
power of Conventions to limit the electors, 
§ 353. 

Officers of Conventions, what are, and how 
chosen ? § 274 ; are members of a Conven- 
tion State officers ? §§ 322-324 ; can a Con- 
vention appoint, to fill vacancies in the gov- 
ernment? §§ 325-330; can a Convention 
eject fi'om office persons who are, under 
the government ? §§ 325, 326 ; can a Con- 
vention direct, in the discharge of their 
official duties ? §§ 325, 326. 

Offices, Ordinance of the Missouri Conven- 
tion of 1865, to vacate certain, under the 
State government, §§ 327-330. 

Ohio, Convention of, of 1802, § 195; do. of 
1850, §§ 217, 218. 

Ordinance, of 1787, extension of provis- 
ions of, to Tennessee, §§ 175, 176; bear- 
ing of, on the legitimacy of Conventions 
called within the territory covered by it, 
§§ 196-207; of the Missouri Convention 
of 1865, to vacate offices under the State 
government, §§ 327-330. 

Oregon, Convention of, of 1857, §§ 196, 197. 

Organization of Conventions, §§ 272-284; 
how initiated, § 273. 



INDEX. 



559 



P. 



Parker, Joel, Judge, speech of, on the right 
of Conventions to issue precepts to the 
electors, § 346. 

Passive obedience, doctrine of, explained, 

Paterson, Justice, opinion of, bearing on 
the question whether the States under the 
Confederation were sovereign, § 50. 

Pennsylvania, Convention of, of 1776, §§ 
143, 144; do. of 1789, §§ 221-225; do. of 
1837. § 219. 

People, of the United States, how sover- 
eignty inheres in the, §§ 54-57; in what 
capacity the, exercise sovereignty, §§ 58, 
59; can the, limit themselves? § 351. 

Peters, jNIr., of Illinois, opinion of, respect- 
ing the powers of Conventions, § 308. 

Pierce, Franklin, President, opinion of, re- 
specting the Topeka Convention of Kan- 
sas, § 212. 

Pinckney, Charles, opinion of, bearing on 
the question of our nationaliity, § 47. 

Pinckney, C. C, opinion of, respecting the 
function and duty of the Federal Conven- 
tion, § 40; do. bearing on the question of 
our nationality, § 47. 

Porter, Mr., of New York, argument of, as 
to the power of Conventions to limit the 
electors, § 354. 

Power, term defined, § 305 ; of the electoral 
bodv, a delegated power, § 354. 

Powers of Conventions, §§ 305-478; two 
theories of the, stated, and examples of, 
given, §§ 307-311; theory that they are 
sovereign, a novelty, §§ 311, 312; with 
reference to the sovereign, or to sovereign 
rights, §§ 315-319; with reference to the 
government of the state as a whole, §§ 
320-330 ; growing out of their relations to 
the electors, §§ 335-364; to the executive 
and judiciarv, 365, 366; to the legislature, 
§§ 367-449 : oif the legislature to bind the 
Convention, §§ 376-418 ; of conventions to 
legislate, §§ 419-441 ; to appropriate money, 
§§ 435-441 ; as legislatures, to prescribe the 
times, places, and manner of electing sen- 
ators and representatives in Congress, §§ 
442-446 ; as legislatures, to ratify proposed 
amendments to the F'ederal Constitution, 
§ 447; to fetter a discretion given by 
the Federal Constitution to State legisla- 
tures, §§ 448, 449 ; with reference to their 
internal relations, express and implied, §§ 
450-470 ; with reference to their organiza- 
tion, to the maintenance of order, and to 
the conduct of their business, §§ 454-458; 
to arrest or punish their own members or 
strangers, §§ 459-470; to prolong or per- 
petuate their existence, §§ 473-478. 

Precedent, definition of the term, § 112. 

Presumptions, constitutional, doctrine of, 
stated and explained, § 25. 

Printing, power of Conventions to furnish, 
§§ 455-459. 

Privileges of members of Conventions, §§ 
471, 472. 



Promulgation of Constitutions, §§ 521-524. 
Punish, power of Conventions to, their own 
members or strangers, §§ 460-470. 



R. 



Ramsay, Dr., opinion of, bearing on the 
question of American nationality, § 47; 
quoted, as to the character of "the first 
South Carolina Constitution, § 134; quo- 
ted, as to the South Carolina Convention 
of 1778. 

Kandolph, Edmund, Governor of Virginia, 
opinion of, as to the function and duty of the 
Federal Convention, § 40 ; the government 
of the Confederation characterized by, 
§ 162, note 1 ; opinion of, as to the powers 
of Conventions, § .309, 384. 

Randolph, John, of Koanoke, opinion of, as 
to the powers of Conventions, § 310. 

Reconsideration, relaxation of rule as to, 
in some Conventions, § 284. 

Reporters for Conventions. § 275. 

Reports in Conventions, how made, §§ 298- 
301; disposition made of, on coming in, 
§ 302. 

Republics, Democratic, Constitutions of, 
§70. 

Resolutions, of the Continental Congress 
respecting the formation of governments 
in the colonies independent of the Crown, 
§§ 128. 129. 

Revolution, the term, defined, § 109; vari- 
ous kinds of, distinguished. § 109 ; conse- 
quences of, and erroneous classification of, 
as great and small, § 100 ; importance of 
defining the term, and reasons of, § 112; 
that which lies within the domain of, not 
to be drawn into precedent, § 112. 

Revolutionary and illegitimate, the two 
terms distinguished, § 113. 

Rhode Island, Convention of, of 1824, §§ 
219, 226 , do. of 1834, §§ 219, 226 ; do. of 
1841 (under the charter), §§ 219, 226; do. 
of 1842, §§ 219, 226; do. of 1841 (People's 
Convention), §§ 226-246. 

Rome, development of nationality of, § 33. 

Ruggles, Mr., proposition of, in the New 
York Convention of 1846, that future Con- 
ventions should consist of two chambers, 
§ 270. 

Rules of Order, in Conventions, § 284. 

Rutledge, President, of South Carolina, 
refusal of, to assent to the South Carolina 
Constitution of 1778, § 136. 



s. 



Schedule, as part of a Constitution, history 
and uses of, §§ 102, 103. 

Secession, connection of, with the constitu- 
tional Convention, § 3 ; Convention of Vir- 
ginia, § 186. 

Sergeant-at-Arms, employment of, in Con- 
ventions, §§ 454. 

Singleton, Mr., of Illinois, resolution of, re- 
specting the powers of Conventions, § 310. 



560 



INDEX. 



South Carolina, advice of Congress to, with 
reference to founding new government in, 
§ 127: Convention of, of 1776, §§ 133, 134; 
do. of 1778, § 135; first two Constitutions 
of, judicial decision respecting validitv of, 
§ 136 note 2 ; Convention of, of 1790, 
§ 219; do. of 1860, §§ 247-219; do. of 1865, 
§§ 250-259. 

Sovereign, the, a fundamental conception 
in this inquiry, § 17; delinition of the term, 
§ 18; distinction between, and supreme, 
§ 18, note 1 ; the States were never, §§ 
49, 50; is the Convention possessed of sov- 
ereign powers? §§ 315-319; can Conven- 
tions limit the, in the choice of its ser- 
vants ? § 351. 

Sovereignty, a fundamental conception in 
this inquiry, § 17; definition of, § 18 and 
note 2 ; marks of, as laid down by Austin, 
§ 19; additional marks of, § 20; theories as 
to the ground of, § 21, note 2; bcus of, 
theoretically considered, § 21; direct modes 
of manifestation of, § 23 ; indirect, § 24 ; con- 
sidered with reference to historical facts, in 
foreign states, § 26; do. in the United 
States, §§ 27 ; locus of, as indicated by the 
definition of sovereignty, § 27 ; as indicated 
by Austin's marks "or "tests, § 28; as indi- 
cated by the additional marks or tests, § 29 ; 
question of American nationality, as bear- 
ing on the hcus of, §§ 30-50; if the United 
States constitute a nation, inheres in the 
nation, or people of the United States, § 51 ; 
how sovereignty inheres in the people of the 
United States, §§ 54-61; exercise of, how 
related to possession of original, § 56; reg- 
ular exercise of, distinguished from the 
possible exercise of, § 56 ; locus of, as de- 
tennined by regular exercise of, in the 
United States, §§ 56, 57; circumstances 
indicating, that it is regularly exercised by 
the people of the United States as dis- 
criminated into groups by States, § 57 ; in 
what capacity the States exercise, § 58; 
opinion of John Austin, as to locus of, in 
the United States, § 60; opinion of John 
C. Hurd, § 60; do. as to mode in which it 
inheres in the people of the United States, 
§ 60; opinion of Dr. Brownson, § 61; of 
Conventions, §§ 307-311; theory of, a nov- 
elty, § 311, 312 ; connection of the theory 
of conventional, with the rise and progress 
of pro-slavery fanaticism, § 312 note 1 

State, the term, how employed in this trea- 
tise, § 17, note. 

States, the, were never sovereign, §§ 49,50; 
in what capacity the, exercise sovereign 
powers, §§ 58, 59. 

States Rights School, view of, as to the 
bearing of the mode of ratifying the Fed- 
eral Constitution on the question of Amer- 
ican nationality, § 37. 

Story, Joseph, Justice, opinion of, bearing 
on the question of American nationality, 
§ 48; charge of, to the jury in the Rhode 
Island case, § 230. 

Submission of Constitutions to the people ; 
can Conventions be bound by the Acts call- 
ing them, to make? §§ 410-418; double, 



of the Kansas Constitution of 1857, §§ 4!5, 
416 ; dut}"^ of Conventions to make, in gen- 
eral, § 479; duty, where neither the Con- 
vention Act nor the Constitution requires 
it, § 481; duty, where submission is ex- 
pressly required by law, §§ 482, 483 ; duty, 
where submission is by law expressly dis- 
pensed with, §§ 484-486 ; precedents relat- 
ing to, §§ 487-495; by whom it should 
be made, §§ 497-499 ; to whom it should 
be made, §§ 500-509 ; nature of the Act 
performed by the persons or body to whom 
it is made, §§ 510-513; manner in which 
it should be made, §§ 514-520. 

Suffrage, true theory of, §§ 335-337. 

Sully, remarks of, respecting the populace, 
§26. 

Supreme, distinguished from sovereign, 
§ 18, note 1. 



Taney, Chief Justice, opinion of, in the 
Rhode Island case of Luther v. Borden, § 
231. 

Tennessee, formation into a State, Conven- 
tion of, of 1796, §§ 175-182; do. of 1834, 
§§ 217, 218; do. of 1861, §§ 247-249; do. 
of 1865, §§ 250-259. 

Texas, Convention of, of 1845, § 195; do. 
of 1861, §§ 247-249; do. of 1866, §§ 250- 
259. 

Topeka Convention, of Kansas, §§ 211-212. 

Treaty, with France, of 1803, bearing of, on 
the legitimacy of the Conventions called 
to frame the first Constitutions of Arkan- 
sas, Iowa, and Kansas, § 197 ; with Spain 
of 1819, bearing of, on the legitimacy of 
the Convention called to frame the first 
Constitution of Florida, § 197 ; with Mex- 
ico, of 1848,bearing of, on the legitimacy of 
the Conventions called to frame the Con- 
stitutions of California and Nevada, § 197. 

Trumbull, Lyman, Senator, speech 'of, re- 
specting the submitting of amendments 
proposed by Congress to the Federal Con- 
stitution to the executive, § 560. 

Tucker, St. George, Judge, opinion of, re- 
specting the repealability of the Virginia 
Constitution of 1776, § 138, note 2. 



u. 



Union, successive schemes of, in the United 
States, §§ 34, 35 ; tendency towards a con- 
solidation of, the most prominent charac- 
teristic of American constitutional liistory, 
§ 34; possibility of a compulsory, contem- 
plated previously to 1789, § 41, note 2. 

United States, locus of sovereignty in, § 
27; do the, constitute a nation, §§ 30-50; 
development of, contrasted with that of 
Rome, § 33; successive steps in develop- 
ment of. §§ 34, 35 ; Articles of Confedera- 
tion forming first regular government of, 
§§ 159-162 ; formation of the present Con- 
stitution of, §§ 163-167. 



INDEX. 



561 



Vermont, Convention of, of 1777, §§ 153, 
154; Convention, or Council of Censors of, 
of 1785, § 155 ; Convention of, of 1786, § 
155 ; erection of, into a State, and admis- 
sion into the Union, §§ 171, 172; Conven- 
tions of, and general observations on, § 220, 
and note 1. 

Veto of Roman Tribunes contrasted with 
the nej^^ative of an American executive, §§ 
510, 511; of the New York Council of Re- 
vision of the Convention bill of 1820, Ap- 
pendix B., p. 538. 

Virginia, resolutions of, of 1799, §§ 49, 50; 
advice of Congress to, relative to founding 
new government in. § 127 ; Convention of, 
of 1776, § 138; resolutions of House of 
Delegates of, recommending a general Con- 
vention to revise tlje Articles of Confeder- 
ation, § 163; consent of, to the erection of 
tlie Kentucky District into a State, §§ 173, 
174; Ordinance of Secession passed by, § 
186 ; Reconstruction Convention of, of 1861, 
§§ 187-189; Convention of, of 1829, § 219; 
do. of 1550, § 219; do. of 1861 (Secession), 
§§ 247-249; do. of 1864 (Reconstruction), 
§§ 250-259. 

w. 



on the question of American nationality, 
§ 47. 

■Webster, Daniel, opinion of, that the Con- 
stitutions of the States and of the Union 
should be kept independent of each other, 
§ 95 ; argument of, in the case of Luther 
V. Borden, §§ 234, 235; quotation from, in 
relation to rights of citizenship, § 360 ; do. 
in relation to nature of the act of a legis- 
lature in recommending specific amend- 
ments to a Constitution, § 549. 

V7ells, J. Madison, Governor of Louisiana, 
issues writs of election in 1860. to till va- 
cancies in the reassembled Convention of 
1864, § 475. 

West Virginia, erection of, into a State, §§ 
186-190; validity of the proceedings re- 
sulting in, considered, §§ 191-193 

Wilson, James, opinion of, respecting the 
powers of the Federal Convention, §§ 43, 
309. 

Wisconsin, Convention of, of 1846, § 195 ; 
do. of 1847, § 196, and note 2. 

"Wise, Henry A., opinion of, respecting time 
necessary to make a good Constitution, § 
457. 

Wyandotte Convention of Kansas, § 216. 



Washington, Bushrod, Justice, decision of, 
as to rights attaching in the States to mere 
citizenship, § 359. 

WasMugton, George, opinion of, bearing 



Yancey, William L., opinion of, as to the 
powers of Conventions, § 311, note 2. 

Young, Thomas, advice of, to the people of 
Vermont, § 153. 



36 



THE END. 



^■0 



iC- 



